The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAULA KIEKISZ, Administrator of ) Case No. 1:21-cv-00264
Brenden Kiekisz Estate )
) Judge J. Philip Calabrese
Plaintiff, )
) Magistrate Judge Thomas M. Parker
v. )
)
CUYAHOGA COUNTY BOARD OF )
COMMISSIONERS, et al., )
)
Defendants. )
)
OPINION AND ORDER
Before the Court are two motions for judgment on the pleadings. Defendant
Kenneth Mills, in his individual capacity, adopted his previous motion for judgment
on the pleadings and submitted a supplemental memorandum of law in support.
(ECF No. 52; ECF No. 52-1.) Defendants Mazo Beawin-Monah, Grace Lagreca, Aisha
Parnell, Thomas Tallman, Jessica Trovato, and Chanda Zitiello also move for partial
judgment on the pleadings. (ECF No. 53.) For the reasons explained below, the Court
GRANTS the motions.
STATEMENT OF FACTS
On a motion for judgment on the pleadings, the Court takes the following
allegations in the first amended complaint as true and construes them in Plaintiff’s
favor.
Brenden Kiekisz died on December 30, 2018 at MetroHealth Hospital, at age
27, while in custody of the Cuyahoga County Corrections Center. (ECF No. 47, ¶ 122,
PageID #661.) He was transferred to the hospital just three days earlier after a
Corrections Officer looked into his cell around 11:00 p.m. on December 27, 2018 and
noticed Mr. Kiekisz had hanged himself by tying a blanket to his bed. (Id., ¶ 119,
PageID #660.)
Mr. Kiekisz had long struggled with his mental health. The relevant events
leading to his death began in September 2018, when Mr. Kiekisz checked himself into
a mental health facility after having suicidal thoughts. (Id., ¶ 21, PageID #524.)
While being treated, he missed one appointment with his probation officer, and a
warrant was issued for his arrest. (Id., ¶ 22.) He was on probation for “crimes
associated with a history of mental health issues and self-medicating with drugs.”
(Id., ¶ 22, n.1.) Mr. Kiekisz was not made aware of the warrant even though he
reported to his probation officer after missing the single appointment. (Id., ¶ 22.)
When he eventually learned about the warrant, he became distraught and
overdosed, which resulted in his hospitalization for over two weeks. (Id., ¶¶ 23–24,
PageID #524–25.) Upon his discharge, he recommitted to living drug free, a decision
motivated by his girlfriend’s new pregnancy. (Id., ¶¶ 24–25, PageID #525.) Sadly,
his girlfriend suffered a miscarriage on December 23, 2018. (Id., ¶ 26.) During this
difficult time, the couple had an argument two days later that ended with Mr. Kiekisz
locked outside of his home without shoes or a coat. (Id., ¶ 27.) He called his father,
who drove to him, accompanied by his mother and brother. (Id., ¶ 28.) Mr. Kiekisz’s
family found him distressed. (Id. ¶ 29.) He declined to go home with them, so they
wished him a Merry Christmas and departed. (Id. ¶ 32, PageID #526.)
Later that day, Cleveland Police arrested Mr. Kiekisz for panhandling. (Id.,
¶ 33.) Panhandling was not an arrestable offense at the time, but Mr. Kiekisz was
taken to the Cuyahoga County jail anyway. (Id.) While there, his outstanding
warrant appeared on his record, and he was booked into the jail. (Id., ¶ 34.)
Corrections Officer Rob Marsh handled the intake. (Id., ¶ 35, PageID #527.) During
intake Mr. Kiekisz informed Officer Marsh that he did not currently have suicidal
thoughts, but that he suffers from depression and bipolar disorder, was currently
taking prescription medication for mental health, and tried to kill himself two days
earlier. (Id., ¶¶ 40, 41, 42, 44, PageID #527–28.) Officer Marsh noticed that
Mr. Kiekisz seemed angry, the letters “F.U.” appeared to have been carved into his
arm recently, and his pants were stained with dried blood. (Id., ¶¶ 43 & 51, PageID
#527 & 529.)
Officer Marsh called Corporal Daniel Halloran and informed him of
Mr. Kiekisz’s recent suicide attempt and the other information discovered during
intake. (Id., ¶ 57, PageID #530.) The two offer competing accounts of their exchange.
(Id., ¶ 63, PageID #532.) Officer March claims Corporal Halloran said, “Get him
dressed, and we’ll have him seen.” (Id., ¶ 58, PageID #531.) Corporal Halloran claims
he offered to come down to conduct a mental health evaluation for Mr. Kiekisz, but
that Officer Marsh told him to hold off and that Officer Marsh would call him when
they were ready. (Id., ¶ 64, PageID #532.) According to Corporal Halloran, Officer
Marsh never called. (Id.)
The Corporal also claimed he told Nurse Grace Lagreca that a new inmate
recently attempted suicide (id., ¶ 67, PageID #533), but the employee roster indicates
that Nurse Lagreca was not working that evening (id., ¶ 69). A video shows Corporal
Halloran speaking with Nurse Jessica Trovato that Christmas evening, but there is
no audio available. (Id., ¶ 70.) The Corporal later stated in an investigative interview
that he alerted Nurse Trovato to an inmate who recently attempted suicide and that
Nurse Trovato told him she knew about him and stated he would be getting an
assessment. (Id., ¶ 71, PageID #534.) Nurse Trovato denies that Corporal Halloran
mentioned the situation to her (id., ¶¶ 73 & 80, PageID #534 & 537), but also stated
that she may not have conducted a medical assessment of Mr. Kiekisz because of
computer issues and a heavy workload (id., ¶ 84, PageID #538).
Whatever the case, Mr. Kiekisz was sent to the jail’s general population
without a mental health referral or evaluation. (Id. ¶ 60, PageID #531.) He received
a floor card, which is a one-page form that states where the inmate is housed, his
status or classification, and other information to make sure inmates with mental
health needs are placed in a particular area of the jail. (Id., ¶ 59.) Mr. Kiekisz’s floor
card placed him in the general jail population. (Id., ¶ 60.) It also displayed a large,
red stamp that stated “MEDICAL” on the outside cover. (Id., ¶ 88, PageID #539.)
The stamp usually indicates that the inmate has received a medical assessment,
although Mr. Kiekisz never did. (Id., ¶¶ 88 & 94, PageID #593 & 541.) It is unclear
who incorrectly stamped his floor card. (Id., ¶¶ 89–90, PageID #540.) It may have
been Nurse Travato, Nurse Murphy, Nurse Beawin-Monah, or an unauthorized
corrections officer. (Id., ¶¶ 89–90, PageID #540.)
Between his arrest and intake on Christmas Day and a court appearance on
December 27, 2018, Mr. Kiekisz was denied his prescription medication while
detained. (Id., ¶ 113, PageID #545.) At his court appearance for his alleged probation
violation, Mr. Kiekisz explained that he missed the appointment because he was
suicidal and checked himself into a medical facility and that he later overdosed and
was hospitalized after learning of the warrant issued for his arrest. (Id., ¶ 115.) He
also explained that he wished to return to the mental health facility and that he felt
“really messed up” without his medications and mental health assistance. (Id., ¶ 117,
PageID #546.) After appearing in court, Mr. Kiekisz was returned to his jail cell in
the general population and given a blanket. (Id., ¶ 118, PageID #547.) Officer Walsh
found Mr. Kiekisz in his cell later that evening, the blanket tied to himself and the
handle of the bunk bed. (Id., ¶ 119.)
Plaintiff pleads several customs, policies, and practices of Defendants’ that led
to Mr. Kiekisz’s death. In sum, she alleges that because Mr. Kiekisz recently
attempted suicide before his arrest, he should have been given a mental health
assessment, placed in the mental health area of the jail, and received a suicide-
prevention blanket, but was not. (Id., ¶ 86, PageID #538.)
STATEMENT OF THE CASE
Plaintiff Paula Kiekisz, Brenden Kiekisz’s mother and the administrator of his
estate, filed the initial complaint on his behalf in State court on December 21, 2020.
(ECF No. 1-1.) Cuyahoga County and the other Defendants removed the case to
federal court on February 1, 2021. (ECF No. 1.) Defendant Eric Ivey moved to
dismiss the complaint for failure to state a claim (ECF No. 7), and Defendant Kenneth
Mills moved for judgment on the pleadings (ECF No. 19). Plaintiff did not respond to
either motion, but requested leave to file an amended complaint. In addition,
Plaintiff and Mr. Ivey entered into a joint stipulated agreement dismissing without
prejudice Plaintiff’s claims against Mr. Ivey in his individual capacity, thereby
rendering Mr. Ivey’s motion moot. (ECF No. 17.) The Court granted in part and
denied in part Plaintiff’s motion for leave to amend the complaint. (ECF No. 46.)
Plaintiff filed a first amended complaint in compliance with the Court’s order. (ECF
No. 47.)
Based on the allegations, Plaintiff raises fourteen causes of action in the first
amended complaint: (1) deliberate indifferent to serious medical needs in violation
of the Eighth and Fourteenth Amendments under 42 U.S.C. § 1983; (2) supervisory
liability under 42 U.S.C. § 1983; (3) willful, wanton, reckless, malicious, and bad faith
conduct; (4) intentional infliction of emotional distress; (5) negligent hiring, training,
retention, discipline, and supervision; (6) failure to intervene; (7) wrongful death;
(8) survivorship; (9) violations of due process under the Fifth and Fourteenth
Amendments; (10) violations of the Americans with Disabilities Act and the
Rehabilitation Act; (11) medical malpractice; (12) Monell violations; (13) civil liability
for criminal acts under Section 2307.60(A)(1) of the Ohio Revised Code; and
(14) vicarious liability or respondeat superior.
Defendants answered the first amended complaint. (ECF No. 48; ECF No. 49;
ECF No. 51.) In addition, Mr. Mills, in his individual capacity, adopted his previous
motion for judgment on the pleadings and submitted a supplemental memorandum
of law in support. (ECF No. 52; ECF No. 52-1.) Defendants Mazo Beawin-Monah,
Grace Lagreca, Aisha Parnell, Thomas Tallman, Jessica Trovato, and Chanda Zitiello
also move for judgment on the pleadings. (ECF No. 53.) Plaintiff did not respond to
either motion.
ANALYSIS
“After the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “A motion for
judgment on the pleadings . . . generally follows the same rules as a motion to dismiss
the complaint under Rule 12(b)(6).” Bates v. Green Farms Condo. Assoc., 958 F.3d
470, 480 (6th Cir. 2020) (citing D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir.
2014)). “The only difference between Rule 12(c) and Rule 12(b)(6)” is timing. Hunter
v. Ohio Veterans Home, 272 F. Supp. 2d 692, 694 (N.D. Ohio 2003).
To survive dismissal, a complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint “states a claim for relief that is plausible, when measured
against the elements” of the cause of action asserted. Darby v. Childvine, Inc., 964
F.3d 440, 444 (6th Cir. 2020) (citing Binno v. American Bar Ass’n, 826 F.3d 338,
345–46 (6th Cir. 2016)). To meet Rule 8’s pleading standard, a complaint must plead
“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). To state a claim, a complaint must “raise a right to relief
above the speculative level” into the “realm of plausible liability.” Twombly, 550 U.S.
at 555.
In assessing plausibility, the Court construes factual allegations in the
complaint in the light most favorable to the plaintiff, accepts the factual allegations
of the complaint as true, and draws all reasonable inferences in the plaintiff’s favor.
Wilburn v. United States, 616 F. App’x 848, 852 (6th Cir. 2015). In reviewing a motion
to dismiss, the Court distinguishes between “well-pled factual allegations,” which it
must treat as true, and “naked assertions,” which it need not. Iqbal, 556 U.S. at 628.
The Court will also not accept as true “[c]onclusory allegations or legal conclusions
masquerading as factual allegations[.]” Eidson v. Tennessee Dep’t of Children’s
Servs., 510 F.3d 631, 634 (6th Cir. 2007).
I. Mr. Mills
Plaintiff sues Mr. Mills in his individual and official capacities. (ECF No. 47,
¶ 10, PageID #520.) Plaintiff raises Counts 1–9, 11, and 13 against Mr. Mills.
I.A. Individual Capacity Claims
Mr. Mills moves for judgment on the pleadings on all claims brought against
him in his individual capacity. Plaintiff alleges Mr. Mills “was the Former Director”
of the County jail and at “all times relevant to this case,” was responsible for the jail’s
operations, policies, procedures, practices, customs, and training and supervision of
its agents, servants, and employees, and “had final policy making authority.” (ECF
No. 47, ¶ 10, PageID #520.)
Mr. Mills admits that he “worked for a period of time as the Director of
Regional Corrections for Cuyahoga County,” but clarifies that he held that position
“from 2014 until November 14, 2018 when he voluntarily resigned from employment
with Cuyahoga County . . . .” (ECF No. 51, ¶ 10, PageID #712.) The Complaint does
not contradict that timeline. Based on his resignation in November 2018, Mr. Mills
argues that he cannot be personally liable for the events relevant to Plaintiff’s
complaint, which occurred between December 25, 2018 and December 30, 2018. (ECF
No. 52-1, PageID #739–41.)
Under the law of this Circuit,
the proper inquiry concerning the liability of a City and its employees in
both their official and individual capacities under section 1983 for a jail
detainee’s suicide is: whether the decedent showed a strong likelihood
that he would attempt to take his own life in such a manner that failure
to take adequate precautions amounted to deliberate indifference to the
decedent’s serious medical needs.
Perez v. Oakland Cnty., 466 F.3d 416, 433 (6th Cir. 2006) (quoting Gray v. City of
Detroit, 399 F.3d 612, 616 (6th Cir. 2005) (emphasis in Perez). “‘Deliberate
indifference’ is the reckless disregard of a substantial risk of serious harm; mere
negligence or even gross negligence, will not suffice.” McPherson v. Cuyahoga Cnty.,
No. 1:20-cv-00639, 2021 WL 2841582, at *7 (N.D. Ohio July 8, 2021) (quoting
Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013)).
A plaintiff must meet an objective and subjective test to succeed on such a
claim. Trozzi v. Lake Cnty., No. 1:20-CV-00684, 2021 WL 2806215, at *4 (N.D. Ohio
July 6, 2021). “For the objective component, the detainee must demonstrate the
existence of a sufficiently serious medical need.” Id. (quoting Spears v. Ruth, 589
F.3d 249, 254 (6th Cir. 2009)). “For the subjective component, the detainee must
demonstrate that the defendant possessed a sufficiently culpable state of mind in
denying medical care.” Id. (quoting Spears at 254.) “A defendant has a sufficiently
culpable state of mind if he ‘knows of and disregards an excessive risk to inmate
health or safety.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A
defendant’s individual liability “must be based on the actions of that defendant in the
situation that the defendant faced, and not based on any problems caused by the
errors of others.” Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991). Plaintiff
alleges that Mr. Mills is the former jail director (ECF No. 47, ¶ 10, PageID #520), and
Mr. Mills’ answer does not contradict that allegation (ECF No. 51, ¶ 10, PageID
#712). Construing the allegations in Plaintiff’s favor, she cannot as a matter of law
satisfy the subjective component where Mr. Mills resigned from his position over one
month before Mr. Kiekisz was denied proper medical care as a pretrial detainee.
I.B. Civil Liability for Criminal Acts
Further, Mr. Mills argues that Count 14, a claim for civil liability for criminal
acts under Section 2307.60 of the Ohio Revised Code is time-barred. (ECF No. 52-1,
PageID #741.) Section 2307.60 is subject to the one-year statute of limitations found
in Section 2305.11(A). Brack v. Budish, No. 1:19-cv-1436, ___ F. Supp. 3d. ___, 2021
WL 1960330, at *5 (N.D. Ohio May 17, 2021); McPherson v. Cuyahoga Cnty., No. 1:20-
cv-00639, 2021 WL 2841582, at *6 (N.D. Ohio July 8, 2021); see also Roarty-Nugent
v. Cuyahoga Cnty., No. 1:20-cv-1025, 2020 WL 5530354, at *6 (N.D. Ohio Sept. 15,
2020). A cause of action typically accrues when the wrongful act was committed.
State ex rel. Cty. of Cuyahoga v. Jones Lang Lasalle Great Lakes Co., Cuyahoga
County No. 104157, 2017-Ohio-7727, 2017 WL 4177024, ¶ 94 (Ohio Ct. App.)
(citations omitted). But the discovery rule tolls the limitations period to the time
when the plaintiff discovers, or reasonably should have discovered, the possible cause
of action through the exercise of reasonable diligence. Id. (citations omitted).
A Rule 12 motion “is generally not an appropriate vehicle for dismissing a claim
based upon the statute of limitations” unless “the allegations in the complaint
affirmatively show that the claim is time-barred[.]” Cheatom v. Quicken Loans, 587
F. App’x 276, 279 (6th Cir. 2014). Setting aside the discovery rule for the moment,
Plaintiff’s claim is time-barred under the one-year statute of limitations. The cause
of action accrued on or before Mr. Mills’ resignation from employment on November
14, 2018 because he could not have engaged in any criminal activity in his official
capacity after that date. Plaintiff filed her complaint in State court on December 21,
2020, almost two years after the relevant events occurred. (ECF No. 1-1, PageID #4.)
The original complaint did not include a claim under Section 2307.60(A)(1). Rather,
the claim was added to Plaintiff’s first amended complaint, filed on August 23, 2021.
Applying the one-year statute of limitations, Plaintiff’s claim against Mr. Mills is
time-barred and would be time-barred even if she had included the claim in the
original complaint and even if Mr. Mills had not resigned before December 30, 2018,
the date of Mr. Keikisz’s death.
To the extent this claim is brought against Mr. Mills in his official capacity,
Mr. Mills asserts that the discovery rule does not toll the limitations period on these
facts. (ECF No. 52-1, PageID #741.) Plaintiff bears the burden to plead affirmatively
why the statute of limitations should be tolled where, as here, “it is apparent from
the face of the complaint that the time limit for bringing the claim has passed.”
Hoover v. Langston Equip. Assocs., 958 F.2d 742, 744 (6th Cir. 1992). A plaintiff may
not “escape the statute by saying nothing.” Id. Further, where “defendants have
highlighted the apparent untimeliness of the complaint, plaintiffs may not simply
rely on the bare assertion that they were unaware of the facts underlying their cause
of action.” Bishop v. Lucent Techs., Inc., 520 F.3d 516, 520 (6th Cir. 2008).
Plaintiff has failed to plead sufficiently why the limitations statute should be
tolled. The first amended complaint contains no factual allegations suggesting that
Mr. Mills or the other Defendants hid the cause of action from Plaintiff or otherwise
prevented her from filing the lawsuit earlier than she did. Nor are there factual
allegations suggesting that Plaintiff was unaware of the underlying conduct and
could not have discovered the cause of action through the exercise of reasonable
diligence before the one-year limitations period expired. Accordingly, Count 14 as
pled against Mr. Mills is time-barred.
II. MetroHealth Medical Personnel
Plaintiff asserts Counts 1, 3–4, 6–9, and 11 against Nurses Grace Lagreca,
Mazo Beawin-Monah, Chanda Zitiello, Aisha Parnell; Counts 1, 3–4, 6–9, 11, and 13
against Nurse Trovato; and Counts 1–9, 11, and 13 against Dr. Tallman. The moving
Defendants all argue Counts 1 and 9, the federal claims, should be dismissed against
them. They also argue that all official-capacity claims against them must be
dismissed as duplicative of the claims against Cuyahoga County and MetroHealth
Hospital and that Count 3 (willful, wanton, reckless, malicious, and bad faith
conduct) must be dismissed because it is not a stand-alone cause of action. Nurses
Grace Lagreca, Mazo Beawin-Monah, Chanda Zitiello, Aisha Parnell then argue that
the Court does not have jurisdiction over the remaining State law claims against
them, Counts 3–4, 6–8, and 11. Alternatively, they argue they are immune from
liability under State law.
II.A. Fifth and Eighth Amendments
Count 9 of the first amended complaint invokes the Fifth Amendment and
Count 1 invokes the Eighth Amendment. The moving Defendants argue that the
Fifth Amendment does not apply because Defendants are all State officials, not
federal, and that the Eighth Amendment does not apply because Mr. Kiekisz was a
pretrial detainee, not a prisoner.
The Fifth Amendment, as Defendants argue, only applies to actions of the
federal government. Prosser v. Francoeur, 85 F. Supp. 2d 736, 738 n.3 (E.D. Mich.
2000) (citing Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir. 1997); Newsom v.
Vanderbilt University, 653 F.2d 1100, 1113 (6th Cir. 1981)); see also Occupy Nashville
v. Haslam, 769 F.3d 434, 440 n.13 (6th Cir. 2014). The moving Defendants are not
federal officials, (ECF No. 47, ¶¶ 13, 14, 16, 18, PageID #521–23) and, therefore,
cannot be sued under the Fifth Amendment.
Defendants are also correct about Plaintiff’s Eighth Amendment claim.
“[B]ecause a pretrial detainee has not yet been convicted, the source of a pretrial
detainee’s right to be free from excessive force stems from the Fourteenth
Amendment rather than the Eighth Amendment.” Leary v. Livingston Cnty., 528
F.3d 438, 450 (6th Cir. 2008); see also Trozzi, 2021 WL 2806215, at *4 (recognizing
that, where a deliberate indifference claim is brought on behalf of a pre-trial detainee,
“the Due Process Clause of the Fourteenth Amendment is the proper starting point”)
(citations omitted). Accordingly, Plaintiff may not pursue her theory of deliberate
indifferent to serious medical needs under the Eighth Amendment.
But the protections of the Fifth and Eighth Amendments are made applicable
to the states through the Fourteenth Amendment and Plaintiff also brings Counts 1
and 9 under the Fourteenth Amendment. Scott v. Clay Cnty., 205 F.3d 867, 873 n.8
(6th Cir. 2000) (Fifth Amendment); Burwell v. City of Lansing, No. 20-1505, 2021 U.S.
App. LEXIS 23074, at *9 (6th Cir. Aug. 4, 2021) (Eighth Amendment) (citations
omitted). To the extent not stated otherwise in this Opinion, Plaintiff may pursue
claims against these Defendants under the Fourteenth Amendment.
II.B. Fourteenth Amendment
Counts 1 (deliberate indifference to serious medical needs) and 9 (due process)
invoke the Fourteenth Amendment. Nurses Lagreca, Beawin-Monah, Zitiello, and
Parnell argue that Plaintiff has failed to state a claim for deliberate indifference to
serious medical needs and that Count 1 therefore fails as a matter of law. (ECF
No. 53, PageID #754.) The Nurses only make this argument with respect to Count 1
and Dr. Tallman and Nurse Trovato do not join in the argument. (Id.)
Unlike the Eighth Amendment, the Fourteenth Amendment protects pretrial
detainees from deliberate indifference toward serious medical needs. Burwell v. City
of Lansing, No. 20-1505, 2021 U.S. App. LEXIS 23074, at *9 (6th Cir. Aug. 4, 2021)
(citations omitted). Courts analyze Fourteenth Amendment deliberate indifference
claims under the same rubric as those brought under the Eighth Amendment. Id.
(citation omitted). That rubric is set out above.
The first amended complaint does not provide any factual allegations to
support that Nurses Lagreca, Beawin-Monah, Zitiello, and Parnell acted with
deliberate indifference toward Mr. Kiekisz’s medical needs. The amended complaint
makes clear that Mr. Kiekisz did not receive medical care before being sent to the
jail’s general population, but it does not allege that these particular Defendants (or
any one of them) were aware of Mr. Kiekisz’s medical needs. Plaintiff alleges
Corporal Halloran thought he informed Nurse Lagreca of Mr. Kiekisz’s medical
needs, but also alleges that “Nurse Lagreca was not even working that night[.]” (ECF
No. 47, ¶¶ 67 & 69, PageID #533.) The allegations against Nurses Beawin-Monah,
Zitiello, and Parnell are equally as slim or nonexistent. Therefore, Plaintiff cannot
satisfy the subjective prong of the rubric, and Count 1 fails as to Nurses Lagreca,
Beawin-Monah, Zitiello, and Parnell.
II.C. Duplicative Official Capacity Claims
The federal claims raised against Nurses Lagreca, Beawin-Monah, Zitiello,
Parnell, and Trovato and Dr. Tallman in their individual and official capacities are
also raised against Cuyahoga County and MetroHealth. Defendants argue that
because MetroHealth and Cuyahoga County are also named Defendants, that the
claims against the Nurses and Dr. Tallman in their official capacities are duplicative
and should be dismissed. (ECF No. 53, PageID #755–56.)
“[O]fficial-capacity suits . . . represent only another way of pleading an action
against an entity of which an officer is an agent.” McPherson v. Cuyahoga Cnty., No.
1:20-cv-00639, 2021 WL 2841582, at *12 (N.D. Ohio July 8, 2021) (quoting Everson v.
Leis, 556 F.3d 484, 493 n.3 (6th Cir. 2009) (quoting Monell, 436 U.S. at 690 n.55)).
Because Plaintiff sued Cuyahoga County and MetroHealth, the official-capacity
claims against Nurses Lagreca, Beawin-Monah, Zitiello, Parnell, and Trovato and
Dr. Tallman are dismissed.
II.D. Qualified Immunity
Nurses Lagreca, Beawin-Monah, Zitiello, and Parnell argue that if Plaintiff
adequately pled a viable federal claim against them, they are entitled to qualified
immunity. (ECF No. 53, PageID #756.) Because the Court has already dismissed
Plaintiff’s deliberate indifference claim (Count 1), it limits its analysis of qualified
immunity to Plaintiff’s due-process claim (Count 9).
Qualified immunity protects public officials against lawsuits for civil damages
where their conduct does not violate the plaintiff’s clearly established constitutional
rights. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013)
(quotation omitted). “To survive the motion to dismiss on qualified-immunity
grounds, the plaintiff must allege facts that plausibly make 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.” Courtright v. City of BattleCreek, 839 F.3d 513, 518 (6th Cir. 2016)
(quoting Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)) (cleaned up). Plaintiff
bears the burden of establishing that qualified immunity does not bar suit. Id.
In evaluating a claim of qualified immunity, the Sixth Circuit directs that a
district court undertake two inquiries, in no particular order. First, a court
determines whether the facts alleged make out a violation of a constitutional right.
Id. (citing Martin, 712 F.3d at 957). Second, the court asks if the right at issue was
clearly established at the time such that a reasonable person would know that his
conduct violated that right. Id. A plaintiff must satisfy each of these steps for his
claim to proceed. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Under
the law of this Circuit, “it is generally inappropriate for a district court to grant a
12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v. Campbell,
779 F.3d 421, 433 (6th Cir. 2015). Although insubstantial claims should be decided
at the earliest stage of litigation possible, that point usually arises at summary
judgment. Id. 433–34.
II.D.1. Clearly Established Right
The Fourteenth Amendment’s Due Process Clause “restricts the activities of
the states and their instrumentalities[.]” Scott, 205 F.3d at 873 n.8. It provides that
no state shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. Plaintiff alleges that Defendants’ deliberate
indifference to Mr. Kiekisz’s medical needs violated his rights to due process of law
and equal protection under the Fourteenth Amendment. (ECF No. 47, ¶ 243, PageID
#586.) The Fourteenth Amendment protects the right of pretrial detainees to receive
necessary medical care that they otherwise cannot seek out because they are
detained. Owensby v. City of Cincinnati, 385 F. Supp. 2d 626, 654 (S.D. Ohio 2004)
(collecting cases). Any argument that Mr. Kiekisz did not have a clearly established
right under the Fourteenth Amendment to receive medical care lacks merit where
Mr. Kiekisz allegedly received no medical care at all, despite alerting jail officials to
a history of suicidal thoughts and attempts and informing officials that he takes
prescribed medications for his mental health. Without question, this right was
clearly established at the time of the events at issue.
II.D.2. Alleged Facts as to Medical Care
“Deliberate indifference to the serious medical needs of pretrial detainees
normally constitutes a substantive due process violation.” Jones v. City of Cincinnati,
521 F.3d 555, 560 (6th Cir. 2008) (cleaned up). “Deliberate indifference requires that
the defendants knew of and disregarded a substantial risk of serious harm to [the
pretrial detainee’s] health and safety.” Id. (quoting Estate of Owensby v. City of
Cincinnati, 414 F.3d 596, 603 (6th Cir. 2005)). As discussed above (supra Part II.B.),
the amended complaint fails to allege that Nurses Lagreca, Beawin-Monah, Zitiello,
and Parnell knew of and disregarded Mr. Kiekisz’s need for medical care. On the
facts as alleged, these individual Defendants are entitled to qualified immunity on
Count 9.
II.E. Supplemental Jurisdiction Over State Law Claims
Plaintiff raises Counts 3–4, 6–7, and 11 against all Defendants under State
law. Nurses Lagreca, Beawin-Monah, Zitiello, and Parnell argue that the Court lacks
pendent jurisdiction over the State law claims in the event the federal claims against
them are dismissed, which is the case. A court may exercise supplemental
jurisdiction over related claims that “form part of the same case or controversy” as
any claim over which the court has original jurisdiction. 28 U.S.C. § 1367(a).
Further, Section 1367(c)(3) provides that a district court may decline to exercise
supplemental jurisdiction where “(1) the claim raises a novel or complex issue of State
law, (2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction; (3) the district court has dismissed all claims
over which it has original jurisdiction, or (4) in exceptional circumstances, there are
other compelling reasons for declining jurisdiction.” In deciding whether to exercise
supplemental jurisdiction, the district court should consider factors such as “comity,
judicial economy, convenience, and fairness.” Pinney Dock & Transp. Co. v. Penn
Cent. Corp., 196 F.3d 617, 620–21 (6th Cir. 1999).
After reviewing the record in this matter, the Court will not exercise its
discretion to decline supplemental jurisdiction over Plaintiff’s State law claims
against Defendants Lagreca, Beawin-Monah, Zitiello, and Parnell. Although the
federal claims against those individuals are dismissed, other federal claims remain
against several other Defendants, including Dr. Tallman and Nurse Trovato.
Further, the State claims involve the same set of facts and circumstances as the
remaining federal claims such that there is one case or controversy between the
parties. And the State law claims do not raise novel issues of State law, and no other
exceptional circumstances exist. Moreover, the same State law claims against the
individual Nurses are also raised against all other Defendants, alleviating any
concern that exercising jurisdiction over the claims against the Nurses will result in
jury confusion or multiple trials. Retaining jurisdiction over the State law claims
best serves the ends of judicial economy and the convenience of the parties by
resolving all claims comprising the same case or controversy and avoiding piecemeal
litigation.
II.F. Immunity Under State Law
In the event the Court elects to exercise jurisdiction over the State law claims,
which it does, Nurses Lagreca, Beawin-Monah, Zitiello, and Parnell argue the State
law claims against them fail as a matter of law because they are entitled to immunity
under Chapter 2744 of the Ohio Revised Code. (ECF No. 53, PageID #758.)
Section 2744.02 grants immunity to political subdivisions “in a civil action for injury,
death, or loss to person or property allegedly caused by an act or omission of the
political subdivision or an employee of the political subdivision in connection with a
governmental or proprietary function.” Ohio Rev. Code. § 2744.02(A)(1). Employees
of a political subdivision are immune from civil liability under Section 2744.03(A)
unless: (1) “The employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;” (2) “The employee’s acts or
omissions were with malicious purpose, in bad faith, or in a wanton or reckless
manner; or (3) “Civil liability is expressly imposed upon the employee” by statute.
Ohio Rev. Code § 2744.03(A)(6).
Relevant to the second exception, “[w]anton misconduct is the failure to
exercise any care toward those to whom duty of care is owed in circumstances in
which there is a great probability that harm will result.” Ruffin, 2017 WL 2832674,
at *14 (citation omitted). Malice is “the willful and intentional design to do injury, or
the intention or desire to harm another, usually seriously, through conduct that is
unlawful or unjustified.” Id. (citation omitted). “Bad faith connotes a dishonest
purpose, moral obliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking of the nature of fraud.” McCormick v.
Flaugher, 5th Dist. Richland No. 2019 CA 0094, 2020-Ohio-2686, ¶ 30 (Ohio Ct. App.)
(citation omitted). Finally, reckless conduct is “characterized by the conscious
disregard of or indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than negligent
conduct.” Ruffin, 2017 WL 2832674, at *14 (citation omitted).
Operating a jail and providing health care services in a county jail are
governmental functions that qualify Cuyahoga County and MetroHealth as political
subdivisions entitled to statutory immunity. Ruffin, 2017 WL 2832674, at *13 (citing
Ohio Rev. Code §§ 2744.01(C)(2)(h) & (x)). As employees of either Cuyahoga County
or MetroHealth (ECF No. 47, ¶ 18, PageID #523), Nurses Lagreca, Beawin-Monah,
Zitiello, and Parnell are immune from liability for Plaintiff’s State-law claims unless
one of the circumstances set forth in Section 2744.03(A)(6) applies.
Plaintiff alleges that these individuals “acted within the scope of their
employment and acted under the color of law” at “all times relevant to this case” (id.),
which eliminates the first exception. Given that the Nurses are barely mentioned in
the first amended complaint and that there are no plausible allegations they
interacted with Mr. Kiekisz or knew about his condition, Plaintiff cannot show they
acted with malice, in bad faith, or in a wanton or reckless manner. Accordingly, the
second exception also does not apply. As for the third, liability is not expressly
imposed by Ohio law in this circumstance and it, too, does not apply. Nurses Lagreca,
Beawin-Monah, Zitiello, and Parnell are, therefore, entitled to statutory immunity on
Plaintiff’s State-law claims.
II.G. Willful, Wanton, Reckless, Malicious and Bad Faith Conduct
Finally, Defendants argue that Plaintiff’s claim for willful, wanton, reckless,
malicious, and bad faith conduct (Count 3) should be dismissed because it is an
element of other causes of action rather than a distinct cause of action. (ECF No. 53,
PageID #762.) Defendants are correct, and Plaintiff’s third claim is dismissed. See,
e.g., Bickerstaff v. Lucarelli, No. 1:14CV831, 2015 WL 1523990, at *5 (N.D. Ohio Apr.
2, 2015) (citing Bradley v. City of Cleveland, No. 1:11CV781, 2012 WL 775106, at *3
(N.D. Ohio Mar. 7, 2012).
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Mills’ motion for
judgment on the pleadings (ECF No. 52). The individual-capacity claims against
Mr. Mills are dismissed. In addition, the claim against him for civil liability for
criminal acts (Count 13) is dismissed against Mr. Mills entirely.
Further, the Court GRANTS partial judgment on the pleadings to Dr. Tallman
and Nurses Lagreca, Beawin-Monah, Zitiello, Parnell, and Trovato (ECF No. 53).
Counts 1 and 9 are dismissed against Nurses Lagreca, Beawin-Monah, Zitiello, and
Parnell. The official capacity claims against Dr. Tallman and Nurses Lagreca,
Beawin-Monah, Zitiello, Parnell, and Trovato are dismissed as duplicative of
Plaintiff’s claims against Cuyahoga County and MetroHealth. Count 3 is dismissed
against the moving Defendants.
SO ORDERED.
Dated: November 9, 2021
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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