The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JENNIFER KILNAPP, ) CASE NO. 1:22CV1225
)
Plaintiff, ) SENIOR JUDGE
) CHRISTOPHER A. BOYKO
vs. )
) OPINION AND ORDER
CITY OF CLEVELAND, et al., )
)
Defendants. )
CHRISTOPHER A. BOYKO, SR. J.:
This matter comes before the Court upon the Motion (ECF DKT #12) of Defendants
City of Cleveland, Dornat Drummond and Bailey Gannon (in their official capacities) to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and the Motion (ECF DKT #15) of Defendant
Bailey Gannon for Judgment on the Pleadings. For the following reasons, the City
Defendants’ Motion is granted in part and denied in part; Defendant Gannon’s Motion is
denied.
I. FACTUAL BACKGROUND
On July 20, 2020, Plaintiff Cleveland Police Officer Jennifer Kilnapp and her rookie
partner, Defendant Bailey Gannon, responded to a call on the east side of Cleveland of an
emotionally disturbed man with a gun on the second floor of a boarding house. When they
arrived on the scene, Gannon went ahead to the second floor bathroom and Plaintiff took her
position a few feet behind. Plaintiff alleges that Gannon did not knock and announce that they
were police officers; did not try to de-escalate the situation; and did not call for backup.
Instead, Gannon opened the door and saw a man with a gun. Plaintiff alleges that Gannon
panicked and ran past her down the stairs. Further, Plaintiff alleges that Gannon pointed his
gun over his head behind him and began shooting. A bullet struck Plaintiff. Plaintiff was
rushed to the hospital by EMS and she underwent surgery. Nearly two years later, Plaintiff
still has nerve damage, PTSD and is unable to return to duty.
According to the within Complaint (ECF DKT #1) filed on July 13, 2022, the Bureau
of Criminal Investigations (“BCI”) and the Cleveland Police Department investigated and
charged the man in the house, Daryl Borden, with Attempted Murder. Plaintiff alleges that
Gannon told homicide detectives that when he opened the door, Borden was holding the gun
with two hands pointing at the door. Plaintiff alleges that trajectory tracing and audio testing
of Gannon’s body camera prove that Gannon shot first, not Borden. Subsequent ballistics,
Plaintiff says, show that Gannon shot her. Allegedly, the Cleveland Division of Police did not
inform Plaintiff that Gannon shot her until the Spring of 2021. The Attempted Murder
charges against Borden were dropped in June of 2021; but Borden was sentenced after a plea
of guilty to Attempted Felonious Assault on a Peace Officer on July 1, 2021.
Plaintiff was suspended in March of 2021 for not turning on her body camera before
entering the house. On the other hand, Gannon was not disciplined for his allegedly
misleading description of the event nor for shooting his partner in flagrant violation of basic
-2-
gun safety rules.
Plaintiff alleges that the force Gannon used was unreasonable and excessive, in
violation of the Fourth Amendment. By shooting Plaintiff, Gannon seized her within the
meaning of the Fourth Amendment. (Id. at ¶ 100). Plaintiff further alleges that Gannon
intended to fire his weapon; he did not fire it accidentally. (Id. at ¶ 104).
Alternatively, Plaintiff alleges that Gannon used force against her maliciously and
sadistically, in violation of the Fourteenth Amendment. By firing blindly at Plaintiff,
Gannon’s use of force was an arbitrary exercise of governmental power. (Id. at ¶ 115).
Gannon’s conduct shocks the conscience and reflects deliberate indifference towards
Plaintiff’s federally protected rights. (Id. at ¶ 120).
Moreover, Plaintiff alleges that Defendants’ conduct reflects a policy or custom of the
City of Cleveland and the Division of Police (“CDP”). CDP and the City of Cleveland have a
policy or custom of tolerating, permitting, encouraging, or engaging in excessive force in
violation of the Constitution. This policy or custom is evidenced in part by: the failure to
train officers; the lack of appropriate training for new recruits; and the failure to implement
effective use-of-force policies, de-escalation guidelines and methods for intervention with
individuals suffering from behavioral health crises. Such failures amount to deliberate
indifference to the rights of persons with whom the police come into contact and to the rights
of fellow officers. These policies or customs were closely related to, or actually caused
Plaintiff’s injuries. (Id. at ¶¶ 88-89). Plaintiff alleges that the Chief of Police ratified
Gannon’s shooting of Kilnapp by failing to discipline him for it or to further investigate. (Id.
at ¶ 98).
-3-
Therefore, Plaintiff alleges that all Defendants are liable for violating her
constitutional rights pursuant to 42 U.S.C. § 1983.
On September 16, 2022, Defendants City of Cleveland, Chief Drummond and Officer
Gannon filed a Motion to Dismiss the Complaint in its entirety.
On September 22, 2022, Defendant Gannon filed a Motion for Judgment on the
Pleadings based upon qualified and common law immunity.
II. LAW AND ANALYSIS
Fed.R.Civ.P. 12(b)(6) Standard of Review
“In reviewing a motion to dismiss, we construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Factual
allegations contained in a complaint must “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Twombly does not “require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. 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).
The United States Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), discussed
Twombly and provided additional analysis of the motion to dismiss standard:
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the assumption
of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations. When there
are well-plead factual allegations a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement
-4-
to relief. Id. at 679.
When a court is presented with a Rule 12(b)(6) motion, it may consider the complaint
and any exhibits attached thereto, public records, items appearing in the record of the case and
exhibits attached to defendant’s motion to dismiss so long as they are referred to in the
complaint and are central to the claims contained therein. See Amini v. Oberlin Coll., 259
F.3d 493, 502 (6th Cir. 2001).
Fed.R.Civ.P. 12(c) 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 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, No. 1:16CV546, 2016 WL
3217869, at *3 (N.D.Ohio Jun.10, 2016), citing Twombly, 550 U.S. at 556.
The court’s decision “rests primarily upon the allegations of the complaint;” however,
“exhibits attached to the complaint [] also may be taken into account.” Barany-Snyder v
Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (citation omitted) (brackets in the original).
The court need not accept as true legal conclusions or unwarranted factual inferences.
-5-
Lewis v. ACB Bus. Servs., 135 F.3d 389, 405 (6th Cir. 1998). 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 ‘show[n]’ entitlement to relief.” Center for Bio-Ethical Reform,
Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011). 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).
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 Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
42 U.S.C. § 1983
To sustain an action under 42 U.S.C. § 1983, a plaintiff must show that the conduct
complained of was committed by a person acting under color of state law; and that the
conduct deprived the plaintiff of a federal constitutional or statutory right. See Haines v.
Saginaw Police Dept., 35 F.3d 565 (6th Cir. 1994) (citing Flagg Bros., Inc. v. Brooks, 436
U.S. 149 (1978)). Deprivation of a plaintiff’s rights, privileges, or immunities secured by the
Constitution and federal laws is the threshold requirement of a Section 1983 action.
Plaintiff alleges a violation of her Fourth Amendment right to be free from
unreasonable seizure and her Fourteenth Amendment right to substantive due process.
Fourth Amendment Violation
To establish a claim for unreasonable seizure, a plaintiff must show that a seizure
actually occurred and that the seizure was unreasonable under the circumstances. Brower v.
-6-
County of Inyo, 489 U.S. 593 (1989). “[V]iolation of the Fourth Amendment requires an
intentional acquisition of physical control. As a result, a seizure occurs even when an
unintended person or thing is the object of the detention or taking, so long as the detention or
taking itself is willful.” Id. at 596. “[T]here can be no question that apprehension by the use
of deadly force is a seizure subject to the reasonableness requirement of the Fourth
Amendment. Tennessee v. Garner, 471 U.S. 1, 7 (1985). The act of firing a gun is
intentional, even if the result is not the one anticipated. See, Rodriguez v. Passinault, 637
F.3d 675 (6th Cir. 2011). “Seizure” cannot be applied to an unknowing act. Brower, 489
U.S. at 596.
Fourteenth Amendment Violation
“Fundamentally, the substantive component of the due process clause insulates
citizens against the arbitrary exercise of governmental power.” Claybrook v. Birchwell, 199
F.3d 350, 359 (6th Cir. 2000), citing County of Sacramento v. Lewis, 523 U.S. 833, 845
(1998). Conduct of a law enforcement officer towards a citizen which “shocks the
conscience” denies the victim fundamental substantive due process. Id. at 847.
A. OFFICER BAILEY GANNON
Defendant Gannon moves for dismissal of Plaintiff’s claims as a matter of law
pursuant to Fed.R.Civ.P. 12(c). (ECF DKT #15). He argues that he is shielded from suit by
qualified immunity because Plaintiff fails to demonstrate a violation of her rights under the
Fourth or Fourteenth Amendments for an unintentional injury that he may have caused.
Moreover, any alleged constitutional violation was not clearly established. In addition,
Defendant Gannon asserts immunity under the common-law Fireman’s Rule and the Fellow
-7-
Servant Doctrine under Ohio’s Worker’s Compensation System.
To reiterate, Plaintiff alleges that Gannon did not announce that they were police
officers; rather, he opened the bathroom door in the boarding house and saw a man with a
gun. Plaintiff further alleges that Gannon panicked and ran past her down the stairs. Then,
Gannon pointed his gun over his head behind him and began shooting. One of his bullets
struck Plaintiff. Gannon intended to fire his weapon; he fired first; and by shooting Plaintiff,
he seized her within the meaning of the Fourth Amendment. Based upon those facts,
Defendant Gannon’s use of deadly force was unreasonable and excessive. Also, in violation
of the Fourteenth Amendment, Gannon’s conduct shocks the conscience and shows deliberate
indifference towards Plaintiff’s federally protected rights.
In his Answer (ECF DKT #14), Defendant Gannon admits that a bullet from his
service weapon inadvertently struck his partner on or about July 20, 2020, but denies the
remaining allegations of Paragraph 1 of the Complaint. (ECF DKT #14 at ¶ 1). In ¶ 2 of his
Answer, Defendant admits that detectives and investigators conducted an examination of the
scene; and that on July 1, 2021, the State dismissed five counts of the indictment in State v.
Borden, Cuyahoga County Case No. CR-20-651870-A, after Darryl Borden pleaded guilty to
attempted felonious assault (peace officer) 2923.02/2903.11 A(1) F2 with firearm
specification(s). Defendant admits that he did not announce that he was a police officer
outside of the bathroom door, and admits that Darryl Borden was standing in the bathroom
holding a firearm when he opened the door. (ECF DKT #14 at ¶¶ 9-10).
The Court finds that Plaintiff has plausibly alleged violations by Defendant Gannon of
her rights under the Fourth and Fourteenth Amendments. The Court also notes that the
-8-
pleadings pose questions of fact as to whether Defendant fired first or in reaction to shots
coming from the armed man in the boarding house bathroom, and whether Defendant’s
actions were intentional or inadvertent.
Qualified immunity
The doctrine of qualified immunity is “available to government officials performing
discretionary functions.” Painter v. Robertson, 185 F.3d 557, 566 (6th Cir. 1999). The
doctrine provides “immunity from suit rather than a mere defense to liability.” Saucier v.
Katz, 533 U.S.194, 200-201. A government official will be entitled to immunity from suit as
long as his conduct does not violate “clearly established [federal] statutory or constitutional
rights of which a reasonable person would have known.” Painter, 185 F.3d at 567.
“The test is whether, reading the complaint in the light most favorable to the plaintiff,
it is plausible that an official’s acts violated the plaintiff’s clearly established constitutional
right.” Heyne v. Metro Nashville Pub. Sch., 655 F.3d 556, 562-63 (6th Cir. 2011).
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 (6th Cir. 2016). Moreover,
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 (6th
Cir. 2015).
Reading Plaintiff’s Complaint against Defendant Gannon most favorably, the Court
-9-
holds that Plaintiff makes plausible claims that Defendant Gannon used excessive and
unreasonable deadly force under the circumstances, and that Defendant Gannon could not
have reasonably believed the use of deadly force was lawful.
Clearly, material issues of fact remain to be determined and foreclose resolution on a
Fed.R.Civ.P. 12(c) motion, which the Court analyzes in the same manner as a Fed.R.Civ.P.
12(b)(6) motion. Defendant Gannon is not entitled to qualified immunity at this stage of the
proceedings.
State-law immunities
Defendant Gannon argues that Plaintiff’s claims against him are barred by the
common-law Fireman’s Rule and the Fellow Servant Doctrine under Ohio’s Worker
Compensation statutes. This argument fails.
At the outset, the Court recognizes that like all individual police officers, Plaintiff
retains her constitutional rights, which if violated by a state actor, can result in liability under
§ 1983. Police officers do not forfeit constitutional rights when they join the municipal police
force. See, e.g., Jensen v. City of Oxnard, 145 F.3d 1078 (9th Cir.), cert. denied, 525 U.S.
1016 (1998).
Moreover, “any state law, however clearly within a State's acknowledged power,
which interferes with or is contrary to federal law, must yield.” Felder v. Casey, 487 U.S.
131, 138 (1988), quoting Free v. Bland, 369 U.S. 663, 666 (1962). “Accordingly, we have
held that a state law that immunizes government conduct otherwise subject to suit under
§ 1983 is preempted, even where the federal civil rights litigation takes place in state court,
because the application of the state immunity law would thwart the congressional remedy, see
-10-
Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980).”
Felder, 487 U.S. at 139.
Defendant’s request for dismissal of the Complaint on the basis of common-law and
state statutory immunities is denied.
The Court finds that material issues of fact exist; that qualified immunity and state law
immunities do not foreclose the Complaint; and that Defendant Gannon is not entitled to
judgment as a matter of law under Fed.R.Civ.P. 12(c).
B. CITY OF CLEVELAND DEFENDANTS
Official capacity claims
Defendants contend that Plaintiff’s claims against the individual Defendants, Dornat
Drummond and Bailey Gannon, in their official capacities should be dismissed. The Court
agrees.
Official capacity suits “represent only another way of pleading an action against an
entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985),
quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978).
“As long as the government entity receives notice and an opportunity to respond, an official
capacity suit is, in all respects other than name, to be treated as a suit against the entity.”
Graham, 473 U.S. at 166, citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985).
Thus, for example, a suit against a municipal employee in his official capacity is the
equivalent of a suit against the public entity itself. Shamaeizadeh v. Cunigan, 338 F.3d 535,
556 (6th Cir. 2003).
Therefore, since Defendants Drummond and Gannon are employees of the City of
-11-
Cleveland, and since the City has been named and served with notice of the suit, Plaintiff’s
claims against the individual Defendants in their official capacity are dismissed as duplicative
of claims against Defendant City of Cleveland.
Municipal liability
The City Defendants move for dismissal of Plaintiff’s Complaint in its entirety for
failure to state a claim under Fed.R.Civ.P. 12(b)(6). (ECF DKT #12).
The cause of action created by § 1983 may be exercised only against a “person
who . . . causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. The Supreme Court has interpreted the word
“person” broadly; and municipalities, are considered “persons” for purposes of § 1983
liability. Monell, 436 U.S. at 690.
Although “person” has been given a broad interpretation under § 1983, when the
person is a municipality, liability attaches only under a narrow set of circumstances: “A
municipality may not be held liable under § 1983 on a respondeat superior theory—in other
words, ‘solely because it employs a tortfeasor.’” D’Ambrosio v. Marino, 747 F.3d 378,
388–89 (6th Cir. 2014) (quoting Monell, 436 U.S. at 691). Instead, a plaintiff must show that
“through its deliberate conduct, the municipality was the ‘moving force’ behind the injury
alleged.” Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013) (quoting Bd. of Cty. Comm’rs v.
Brown, 520 U.S. 397, 404 (1997)). A plaintiff may accomplish this by showing that the
municipality had a “policy or custom” that caused the violation of his rights. Monell, 436
U.S. at 694.
-12-
There are four methods of showing the municipality had such a policy or custom: the
plaintiff may prove “(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.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.
2013) (citation omitted). (Emphasis added).
Defendants argue that Plaintiff’s allegations are nothing more than “formulaic” and
“conclusory.” They contend that the Complaint does not discuss particular shortcomings of
the City or the CDP nor how those shortcomings caused Gannon’s “split second decision.”
Plaintiff is not required to demonstrate every one of the four avenues to municipal
liability under § 1983. In fact, Plaintiff need ultimately only prove one.
A reading of the Complaint shows that Plaintiff relies most heavily upon the City’s
policy of inadequate training and its custom of tolerance for federal rights violations.
As for tolerating and acquiescing in civil rights violations: “CDP took no disciplinary
action against Gannon for misleading investigators, despite their determination that his
version of events could not possibly be true.” (ECF DKT #1 at ¶ 70). “CDP also chose not to
discipline Gannon for shooting his partner by firing blindly over his head while running in the
other direction, even though his actions flagrantly violated the most basic gun-safety rules.”
(Id. at ¶ 71). “In December 2014, the U.S. Department of Justice found that the Cleveland
Division of Police had engaged in an ongoing pattern and practice of excessive force, as well a
litany of other failures regarding training and implementation of constitutionally appropriate
use-of-force and de-escalation policies and procedures.” (Id. at ¶ 81). Moreover, Plaintiff
-13-
alleges that these deficiencies continued through July of 2020 when this incident occurred;
and that the policies of the City were “closely related to or actually caused the injury.” (Id. at
89).
With regard to failure to train: “CDP and the City of Cleveland have a policy or
custom of failing to adequately train officers—particularly new officers and recruits—in
various relevant areas, including: the use of force; intervention with individuals suffering from
behavioral health crises; de-escalation; and other officer-safety tactics. Such failures amount
to deliberate indifference to the rights of persons with whom the police come into contact and
the rights of fellow officers themselves.” (Id. at ¶ 96).
To repeat the 12(b)(6) standard: “In reviewing a motion to dismiss, we construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw
all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d at 476.
Specific facts are not necessary at this juncture; rather, Plaintiff is required to “give the
defendant fair notice of what the . . . . claim is and the grounds upon which it rests.” See
Gunasekara v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting in part, Erickson v. Pardus,
551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)).
With the benefit of discovery, Plaintiff may be able to show that a custom or policy of
tolerance exists, what its scope might be or how it resulted in a violation of her constitutional
rights. Plaintiff may “demonstrate that the inadequate training was the result of deliberate
indifference by providing prior instances of unconstitutional conduct reflecting that the
municipality ignored a history of abuse, and was on notice that the training in this particular
area was deficient and likely to cause injury.” Fisher v. Harden, 398 F.3d 837, 849 (6th Cir.
-14-
2005). Plaintiff may additionally be able to “show that such a training failure has the “‘highly
predictable consequence’ of constitutional violations of the sort Plaintiff suffered.” Gregory
v. City of Louisville, 444 F.3d 725, 753 (6th Cir. 2006)(citation omitted).
However, Plaintiff does not bear this evidentiary burden now. Instead, Plaintiff’s
Complaint must offer “just enough factual information to create an expectation that discovery
will uncover evidence supporting the claim.” Haber v. Rabin, No. 1:16CV546, 2016 WL
3217869, at *3 (N.D.Ohio Jun.10, 2016), citing Twombly, 550 U.S. at 556.
The Court finds that Plaintiff’s Complaint alleges a plausible claim of municipal
liability under 42 U.S.C. § 1983. The Motion of the City of Cleveland Defendants to Dismiss
is denied in this regard.
III. CONCLUSION
For these reasons, the Motion (ECF DKT #12) of Defendants City of Cleveland,
Dornat Drummond and Bailey Gannon (in their official capacities) to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(6) is granted in part and denied in part; and the Motion (ECF DKT #15) of
Defendant Bailey Gannon for Judgment on the Pleadings is denied.
IT IS SO ORDERED.
DATE: December 9, 2022
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
-15-