The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
) CASE NO. 1:21-cv-1254
JOHN T. SANDERS, )
) JUDGE CHARLES E. FLEMING
Plaintiff, )
) ORDER RE: DEFENDANTS’
v. ) MOTION FOR JUDGMENT
) ON THE PLEADINGS
CUYAHOGA COUNTY, et al., )
)
Defendants. )
I. Procedural History
On November 23, 2021, Plaintiff filed an amended complaint alleging that Defendant
Lourie fired a beanbag round at a protest at the Justice Center in Cleveland, Ohio on May 30, 2020
that struck Plaintiff on his side and back. (ECF No. 20). The metal pellets that exploded from the
round destroyed Plaintiff’s left eye. Id. Plaintiff filed twelve claims against Defendants Cuyahoga
County, Armond Budish, David Schilling, Bruce Lourie, and Juan Rodriguez. Id. On December
16, 2021, Defendants answered Plaintiff’s amended complaint. (ECF No. 22).
On January 25, 2022, Defendants Cuyahoga County, Armond Budish, and David Schilling
moved for judgment on the pleadings per Fed. R. Civ. P. 12(c) with respect to all claims alleged
against them, claims eight through twelve. (ECF No. 27). Defendants argued 1) Plaintiff’s
complaint lacks sufficient non-conclusory factual material; 2) Budish and Schilling are entitled to
qualified immunity with respect to claims eight and nine; and 3) Cuyahoga County cannot be liable
for claim twelve pursuant to Ohio’s Political Subdivision Tort Liability Act, chapter 2744 of the
Ohio Revised Code. Id.
On April 25, 2022, Plaintiff opposed the motion, arguing that his amended complaint
alleged ample factual material to survive a motion for judgment on the pleadings and noting that
Defendants’ motion failed to identify any legal deficiency in the amended pleadings. (ECF No.
35). Plaintiff argued that it is not appropriate for the Court to dismiss based on qualified immunity
at this point because rendering that decision solely on the allegations in a complaint is unfair
without necessary factual development from discovery. Id. Plaintiff did not address Defendants’
concern regarding the Political Subdivision Tort Liability Act.
On May 24, 2022, Defendants replied in support of their motion. (ECF No. 37).
Defendants argued that dismissal under qualified immunity is appropriate at this early stage in
proceedings because Plaintiff failed to adequately plead facts suggesting that Budish and Schilling
committed a constitutional violation. Id. Defendants also noted that Plaintiff’s pleadings are
insufficient to support his Monell claim under either a “single incident” or “pattern or practice”
theory. Id.
II. Legal Standard
After pleadings are closed, a party may move for judgment on the pleadings. Fed. R. Civ.
P. 12(c). A motion for judgment on the pleadings essentially constitutes a delayed motion under
Rule 12(b)(6) and is evaluated under the same standard. See Anders v. Cuevas, 984 F.3d 1166,
1174 (6th Cir. 2021). Under that standard, 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 claim is
plausible on its face when “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. The
“complaint must contain direct or inferential allegations respecting all the material elements under
some viable legal theory.” Commercial Money Center, Inc. v. Illinois Union Ins. Co., 508 F.3d
327, 336 (6th Cir. 2007).
In assessing plausibility, the Court construes factual allegations in the complaint in the light
most favorable to the plaintiff, accepts the allegations of the complaint as true, and draws all
reasonable inferences in the plaintiff's favor. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007).
In ruling on a Rule 12(c) motion, the Court considers all available pleadings. See Fed. R.
Civ. P. 12(c). “The court can also consider: (1) any documents attached to, incorporated by, or
referred to in the pleadings; (2) documents attached to the motion for judgment on the pleadings
that are referred to in the complaint and are central to the plaintiff's allegations, even if not
explicitly incorporated by reference; (3) public records; and (4) matters of which the court may
take judicial notice.” Dudek v. Thomas & Thomas Attorneys & Counselors at Law, LLC, 702 F.
Supp. 2d 826, 832 (N.D. Ohio 2010).
III. Claim Eight
In Plaintiff’s amended complaint, claim eight brings an action for damages against
Defendants Budish and Schilling under 42 U.S.C. § 1983. (ECF No. 20). Defendants argue that
the Court should dismiss claim eight because Plaintiff failed to allege active unconstitutional acts
by either Budish or Schilling. (ECF No. 27, PageID 335). Defendants also noted that the
individualized allegations against Budish and Schilling do not rise to the level of deliberate
indifference. Id. at 337. Additionally, the Cuyahoga County Charter was amended effective
December 26, 2019 to restore autonomy to the County Sheriff and remove the County Executive’s
prior unilateral authority to appoint or remove the Sheriff. Id. at 339. Consequently, Defendants
argue that Budish lacked supervisory authority over the deputy sheriffs involved in the incident,
Lourie and Rodriguez. Id.
Plaintiff argues that Defendants ignored numerous allegations that support individual
liability against Budish and Schilling including, paragraphs 207–210, 214–220, 241–244, 290–
293, and 301–309. (ECF No. 35, PageID 387). Plaintiff stated that the 2019 Charter Amendments
are irrelevant because they were not in effect at the time of the eighteen excessive force incidents
described in the complaint and Budish can still be individually liable even if he was not responsible
for the day-to-day supervision of the County’s law enforcement officers. (ECF No. 35, PageID
390).
Defendants responded that Plaintiff’s complaint contains allegations related to Schilling
and Budish failing to act to correct problems in the jail, however, it lacks any wrongful affirmative
act by Budish or Schilling that relates to what happened to Plaintiff. (ECF No. 37). They argued
that the Charter amendments make Lourie and Rodriguez non-subordinates of Budish and there is
no case law that supports supervisory liability attaching to wrongful conduct by a non-subordinate.
Id.
Upon review of the amended complaint, paragraphs 207–210 contain one vague allegation
that “County administration” failed to respond appropriately to acts of gratuitous and excessive
violence. (ECF No. 20). The remaining allegations reference just “the County.” Id. Paragraph
214 alleges that Budish and Schilling “failed to have adequate policies and procedures to ensure
the protestors’ constitutional rights were not violated, for failure to train and supervise, and for
other particular reasons as alleged in this Amended Complaint.” Id. Paragraph 220 alleges that
the constitutional violations committed by the Sheriff’s Department on May 30, 2020 were caused
by a lack of policy regarding “how to approach crowd control so as to not exacerbate matters.” Id.
Plaintiff then cited to a policy that the Cleveland Division of Police has regarding civil disturbances
as an example of a policy that should exist at the County level. Id. However, the amended
complaint fails to address what County policies regarding civil disturbances, if any, are at issue in
this case. In paragraphs 244–246, Plaintiff provides language from the alleged Cuyahoga County
Sheriff Department’s policy concerning the use of “Impact Weapons and Less Lethal Shotgun
Munitions.” Id. Plaintiff then highlights how Defendant Lourie violated the policy. Id. Defendant
Lourie’s potential violation of alleged county policy does not establish any liability for Defendants
Budish or Schilling. See Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006).
Contained within the allegations that Plaintiff enumerated under claim eight is one
allegation that Defendants Budish and Schilling “knew about the problems in the Cuyahoga
County Sheriff’s Department and failed to take appropriate steps to ensure that citizens’
constitutional rights were not violated.” Id. Under a theory of supervisory liability, the law
requires more than “an attenuated connection between the injury and the supervisor’s alleged
wrongful conduct.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016). Mere failure
to act does not suffice to establish supervisory liability. Id. (citing Gregory v. City of Louisville,
444 F.3d 725, 751 (6th Cir. 2006)). “[S]upervisory liability requires some ‘active unconstitutional
behavior’ on the part of the supervisor.” Id. (citing Bass v. Robinson, 167 F.3d 1041, 1048 (6th
Cir. 1999)). At a minimum, Plaintiff must show that Defendants Budish and Schilling “at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the
offending officers.” Id. at 242. The Plaintiff has failed to allege sufficient factual matter to allege
that Budish implicitly authorized, approved, or knowingly acquiesced in the alleged
unconstitutional conduct of the deputy sheriffs on May 30, 2020. Nowhere in the amended
complaint does the Plaintiff state what actions Budish took that would have implicitly authorized,
approved, or knowingly acquiesced in the alleged unconstitutional conduct.
However, in Deputy Lourie’s report attached to Plaintiff’s opposition, Deputy Lourie
wrote, “I ran into the Sheriff at the first floor and asked him if it was ok to get the less than lethal.
He said OK. I retrieved the less than lethal shotgun from the weapons safe in the rollcall room.”
(ECF No. 35, PageID 400). Even though this report was not attached to Plaintiff’s amended
complaint, the Court can still consider it as part of the pleadings because its contents were
referenced in the amended complaint. See Dudek v. Thomas & Thomas Attorneys & Counselors
at Law, LLC, 702 F. Supp. 2d 826, 832 (N.D. Ohio 2010). Paragraph 246 of Plaintiff’s amended
complaint states, “Deputy Lourie and other deputies derisively referred to the entire crowd as
‘rioters’ when only a small number were involved in vandalism or other conduct that could cause
them to be deemed rioters.” (ECF No. 20). Deputy Lourie’s report frequently references the
protestors as “rioters” or “violent rioters” and there is no reference elsewhere in the amended
complaint as to where Plaintiff obtained the information that Deputy Lourie referred to the crowd
as rioters, so the Court concludes that Plaintiff was referencing Deputy Lourie’s report. (ECF No.
35, PageID 400–03).
The evidence cited in Deputy Lourie’s report that Sheriff Schilling gave him permission to
obtain the less lethal shotgun, despite Deputy Lourie not being certified to do so, makes it plausible
that Sheriff Schilling implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers. This is buttressed by the fact that Sheriff
Schilling’s “After Action Report” acknowledges that several deputies who were not trained in the
use of less than lethal weapons possessed and deployed them during the encounter with protesters
on May 30, 2020. (ECF No. 20).
Consequently, the Court GRANTS Defendants’ motion for judgment on the pleadings with
respect to Defendant Budish in claim eight and dismisses Defendant Budish with prejudice.
However, the Court DENIES Defendants’ motion for judgment on the pleadings with respect to
Defendant Schilling in claim eight.
a. Qualified Immunity
Defendants also asserted that Budish and Schilling are entitled to qualified immunity
because Plaintiff failed to adequately allege that Budish and/or Schilling violated his constitutional
rights or that those rights were “clearly established” at the time. (ECF No. 27, PageID 343).
Plaintiff argued that grants of qualified immunity at the pleadings stage are disfavored
because of the fact-intensive nature of the qualified immunity inquiry. (ECF No. 35, PageID 393).
He then emphasized that even if it were an appropriate determination at this stage, “there is little
question that Sanders asserts rights that were clearly established at the time of his injury.” (ECF
No. 35, PageID 394).
Defendants responded that the Sixth Circuit recently emphasized that there is no
presumption against deciding qualified immunity via a motion to dismiss. (ECF No. 37) (citing
Crawford v. Tilley, 15 F.4th 752, 765–66 (6th Cir. 2021)). Defendants argued that Budish and
Schilling are entitled to qualified immunity under both prongs of the qualified immunity defense
because Plaintiff fails to cite to any prior cases from any court that support essential elements of
his supervisory liability claim. (ECF No. 37).
Defendants are not entitled to qualified immunity at the pleadings stage if (1) “the facts
alleged make out a violation of a constitutional right” and (2) that right “was clearly established
when the event occurred so that a reasonable offic[ial] would have known that his conduct
violated it.” Crawford v. Tilley, 15 F.4th 752, 762–63 (6th Cir. 2021). Plaintiff is correct that
analyzing the second prong of qualified immunity just based on the pleadings may be difficult
because the inquiry could turn on details fleshed out in discovery. See Myers v. City of Centerville,
Ohio, 41 F.4th 746, 758 (6th Cir. 2022). However, that does not prevent the Court from analyzing
the first prong of qualified immunity, whether the complaint plausibly alleged a constitutional
violation. Id. at 759. “[I]f the complaint fails to allege facts plausibly showing the violation of a
constitutional right (regardless of whether that right was clearly established), granting qualified
immunity is appropriate on the pleadings.” Id. As noted above, Plaintiff failed to adequately plead
a constitutional violation by Budish. Thus, Budish is entitled to qualified immunity. However, as
it is plausible that Schilling committed a constitutional violation, the Court cannot grant Defendant
Schilling qualified immunity at this stage without fleshing out further factual details in discovery.
IV. Claim Nine
In Plaintiff’s amended complaint, claim nine alleges damages for criminal acts under
O.R.C. § 2307.60(A)(1). (ECF No. 20). It alleges that Budish and Schilling violated O.R.C.
§ 2921.45(A). Id. O.R.C. § 2921.45(A) states, “[n]o public servant, under color of the public
servant’s office, employment, or authority, shall knowingly deprive, or conspire or attempt to
deprive any person of a constitutional or statutory right.” Defendants argue that Plaintiff failed to
sufficiently allege that Budish or Schilling deprived him of any constitutional right, or that they
did so “knowingly.” (ECF No. 27).
Plaintiff responded that he more than adequately alleged facts supporting his First and
Fourth Amendment claims. (ECF No. 35, PageID 395). However, the Court notes that Plaintiff
failed to address the “knowingly” requirement of O.R.C. § 2921.45(A). Id.
Plaintiff’s amended complaint vaguely asserts that Budish and Schilling knew about “the
problems” in the Sheriff’s Department and “failed to take appropriate steps to ensure that citizens’
constitutional rights were not violated.” (ECF No. 20). As noted in the analysis of the pleadings
related to claim eight, Plaintiff failed to adequately plead a constitutional violation by Budish.
Consequently, Plaintiff certainly failed to plead that Budish “knowingly deprive[d], or conspire[d]
or attempt[ed] to deprive any person of a constitutional or statutory right.” Plaintiff also failed to
address how any alleged violation by Schilling meets the “knowingly” requirement of O.R.C.
§ 2921.45(A). The pleadings do not sufficiently support a plausible claim that Schilling knowingly
deprived, or conspired or attempted to deprive Plaintiff of a constitutional or statutory right.
Accordingly, the Court GRANTS Defendants’ motion for judgment on the pleadings with respect
to claim nine and dismisses claim nine with prejudice.
V. Claims Ten and Eleven
In Plaintiff’s amended complaint, claim ten alleges liability under 42 U.S.C. § 1983 against
Cuyahoga County, pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), for
deliberate indifference in failing to train and supervise its deputy sheriffs. (ECF No. 20). Claim
eleven alleges liability under 42 U.S.C. § 1983 against Cuyahoga County, pursuant to Monell, for
a custom, policy, pattern, and/or practice tolerating First Amendment retaliation and the use of
excessive force. Id. Defendants argue that Plaintiff failed to properly plead a “pattern and
practice” because Plaintiff relied on eighteen incidents involving the jail and no incidents involving
law enforcement use of force in a public setting, incidents involving use of beanbag rounds, or
incidents involving deputy sheriffs violating the First Amendment right to peaceably assemble.
(ECF No. 27, PageID 332). Consequently, Defendants ask the Court to find that Plaintiff has
merely alleged a pattern of generic “use of force” violations occurring in the Jail that are factually
and legally distinct from the alleged violations against Plaintiff. (ECF No. 27, PageID 333).
Defendants also argue that Plaintiff’s failure to train argument fails because he did not
allege that the County provided no training concerning the use of beanbag rounds, rather the
Plaintiff alleged that Deputy Sheriff Lourie was not adequately trained to use beanbag rounds.
(ECF No. 27, PageID 334). The Defendants cite to Stewart v. Warren County Board of
Commissioners, 821 F. App’x 564 (6th Cir. 2020) for the proposition that the unsatisfactory
training of one employee cannot amount to “deliberate indifference.” Id.
Plaintiff responded that the eighteen jail incidents cited in his amended complaint put
Defendants on notice of “the frequency and likelihood of constitutional deprivations.” (ECF No.
35, PageID 375). Plaintiff argued that the eighteen incidents “are enough to draw the reasonable
inference that the use of excessive force permeates the entire culture of the Sheriff’s office.” Id.
at 376. Plaintiff alleged that the amended complaint did not just target Defendant Lourie’s lack of
training and cited to paragraphs 311–318 as evidence that he alleged that deputy sheriffs in general
were inadequately trained. Id. at 382.
Defendants replied that courts routinely dismiss Monell claims at the pleading stage for
failure to allege a pattern of similar prior incidents. (ECF No. 37). Defendants also noted that
Plaintiff offered no support for his argument that the Court should consider the “root cause” in
determining the similarity of prior incidents and the fact that the alleged prior incidents all took
place in a jail setting is irrelevant to similarity. Id.
The parties agree that for a municipality to be liable for the actions of its officers under
§ 1983, Plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”
Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997) (quoting
Monell v. Department of Social Services, 436 U.S. 658, 694 (1978)). Plaintiff can prove the
existence of a municipality’s policy or custom in four ways: “1) the municipality’s legislative
enactments or official agency policies; 2) actions taken by officials with final decision-making
authority; 3) a policy of inadequate training or supervision; or 4) a custom of tolerance or
acquiescence of federal rights violations.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th
Cir. 2005). Both parties agree that Plaintiff’s complaint focuses on inadequate training or
supervision, and tolerance of or acquiescence to federal rights violations.
In order to adequately plead a tolerance or acquiescence theory, Plaintiff must allege “1)
‘a clear and persistent’ pattern of unconstitutional conduct by municipal employees; 2) the
municipality’s ‘notice or constructive notice’ of the unconstitutional conduct; 3) the municipality’s
‘tacit approval of the unconstitutional conduct, such that its deliberate indifference in its failure to
act can be said to amount to an official policy of inaction;’ and 4) that the policy of inaction was
the ‘moving force” of the constitutional deprivation, such that the plaintiff’s constitutional injury
was directly caused by the conduct of the municipality rather than simply by the conduct of the
municipal employee.” D’Ambrosio v. Marino, 747 F.3d 378, 387–88 (6th Cir. 2014) (quoting Doe
v. Claiborne County, 103 F.3d 495, 508 (6th Cir. 1996)). A failure to train theory also requires
“[a] pattern of similar constitutional violations by untrained employees” in order to demonstrate
“deliberate indifference to the rights of persons with whom the untrained employees come into
contact.” Connick v. Thompson, 563 U.S. 51, 61–62 (2011).
a. Pattern of Similar Incidents
In the amended complaint, Plaintiff provides details concerning prior incidents of alleged
excessive force involving Cuyahoga County Sheriff’s Office employees. (ECF No. 20). The first
alleged incident involved a Corporal during the booking process at the Euclid Jail. Id. The second
incident does not include a location, but references an incident with an inmate, a correctional
officer, and a Corporal, so the Court concludes it occurred in a detained environment. Id. The third
incident occurred in the county jail and involved numerous correctional officers and a Corporal.
Id. The fourth incident involved a “Cuyahoga County Sheriff employee” during booking at the
county jail. Id. The fifth incident also occurred during booking at the county jail and merely
references “Cuyahoga County Sheriff employees.” Id. The sixth incident also occurred during
booking at the county jail, involved the same employee referenced in the fourth incident and a
Corporal. Id. The seventh incident occurred in the county jail and involved a “Cuyahoga County
Sheriff employee.” Id. The eighth incident occurred in the county jail and involved “Cuyahoga
County Sheriff employees” and at least two Corporals. Id. The ninth incident occurred during
booking at the county jail and involved “Cuyahoga County Sheriff employees.” Id. The tenth
incident references a jail and involves a “Cuyahoga County Sheriff employee.” Id. The eleventh
incident occurred at the county jail and involved a “Cuyahoga County Sheriff employee.” Id. The
twelfth incident does not specify a location, but the complaint refers to the individuals involved
being an “inmate” and officers, so the Court concludes it was in a detained setting. Id. The
thirteenth incident occurred in the county jail and involved “Cuyahoga County Sheriff’s Office
employees.” Id. The fourteenth incident does not specify a location, but identifies the individuals
involved as “Cuyahoga County Sheriff’s Office employees.” Id. The fifteenth incident occurred
in the county jail and involved “Cuyahoga County Sheriff’s Office employees” and a Corporal.
Id. The sixteenth incident occurred in a “small cell” and involved a Corporal and another
employee. Id. The seventeenth incident occurred in a detained setting and involved numerous
correctional officers and a Corporal. Id. The eighteenth incident occurred at the Cuyahoga County
jail and involved a “Cuyahoga County Sheriff’s Office employee.” Id. None of the incidents
involved deputy sheriffs and all of them took place in a detention setting. None involved the use
of beanbag rounds, the main alleged exercise of excessive force at issue in this case.
“[O]nly similar incidents of prior misconduct can put a municipal actor on notice that
comparable misconduct may occur in the future.” D’Ambrosio v. Marino, 747 F.3d 378, 388 (6th
Cir. 2014). Cuyahoga County “cannot have tacitly approved an unconstitutional policy of which
it was unaware.” Id. Plaintiff admitted that the constitutional rights at issue in excessive force
incidents involving free citizens, inmates, and pretrial detainees are different. (ECF No. 35,
PageID 377). Coley v. Lucas County, Ohio, 799 F.3d 530, 537–38 (6th Cir. 2015) provides a short
summary of the case law concerning the separate standards that are applied in each situation to
determine if a government actor used excessive force against a free citizen, an inmate, or a pretrial
detainee. Each of the incidents cited by Plaintiff as evidence of a custom, policy, pattern, and/or
practice of excessive force within the Cuyahoga County Sheriff’s Department are factually and
legally distinct from this case. Consequently, the eighteen incidents cited by Plaintiff do not
establish “a clear and persistent” pattern of unconstitutional conduct by deputy sheriffs or a pattern
of similar constitutional violations by untrained employees.
Accordingly, the Court GRANTS Defendants’ motion for judgment on the pleadings with
respect to claim eleven and dismisses claim eleven with prejudice.
b. Failure to Train
A municipality may still be liable under a failure to train theory for a single violation of
federal rights where the “violation may be a highly predictable consequence of a failure to equip
employees with specific tools to handle recurring situations.” Shadrick v. Hopkins County, Ky.,
805 F.3d 724, 739 (6th Cir. 2015). Plaintiff cited to paragraphs 311–318 as evidence in support
of the single violation theory. (ECF No. 35, PageID 382). In paragraph 312, Plaintiff states that
the Cuyahoga County Sheriff’s Department written policy requires that “[d]eputies will be trained
and certified in the use of approved impact weapons and must maintain certification.” (ECF No.
20). Paragraph 314 asserts, “Defendant Cuyahoga County failed to train and supervise its officers
on how to use the best tactics, including the best use of force procedures when required.” Id.
Paragraph 237 of the amended complaint highlights Sheriff Schilling’s October 5, 2020 “After
Action Report” that stated that three deputies deployed less lethal munitions on May 30, 2020 that
did not have the necessary certification to operate the munitions they deployed. Id. Paragraph 237
goes on to highlight that the County has since instituted a new policy where, “when the potential
for less lethal deployment arises, supervisors assigned to SWAT and MFF [Mobile Field Force]
will assign less lethal munitions directly to certified deputies under their command.” Id. Notably,
this new policy is in stark contrast to the actions taken on May 30, 2020, when the Sheriff allegedly
granted Deputy Lourie permission to use the less than lethal weapon without inquiring as to Deputy
Lourie’s certification status. (ECF No. 35, PageID 400).
The Court acknowledges that the potentially inadequate training that Defendant Lourie
received is not enough to demonstrate deliberate indifference on the part of Cuyahoga County.
See Stewart v. Warren County Board of Commissioners, 821 F.App’x 564, 574 (“inadequate
training of one employee is not enough to demonstrate deliberate indifference”). However,
Defendant Lourie was not the only deputy that deployed less lethal munitions on May 30, 2020
that lacked the necessary certification to do so. (ECF No. 20). Defendant Lourie has been
employed as a Deputy Sheriff since December 2001. Id. The County does not adequately equip
its deputies with the required training and certification concerning less lethal munitions if Deputy
Lourie was not certified to be handling a less lethal shotgun nineteen years into the job. This
failure seems to be pervasive. As previously stated, Sheriff Schilling’s “After Action Report”
acknowledged that several deputies possessed and deployed less than lethal munitions without the
appropriate certification. (ECF No. 20). The failure to train/certify numerous deputies, that we
know of, in the use of less lethal munitions leads to the highly predictable consequence of a federal
rights violation when deputies are recurrently in situations that present a need to use less than lethal
force. Consequently, it is plausible that Cuyahoga County is liable under a failure to train theory
for a single violation of federal rights.
Accordingly, the Court DENIES the Defendants’ motion for judgment on the pleadings
with respect to claim ten.
VI. Claim Twelve
In Plaintiff’s amended complaint, claim twelve alleges that Cuyahoga County is liable for
reckless and/or negligent hiring, training, supervision, discipline, staffing, and retention of
Defendants Lourie and Rodriguez. (ECF No. 20). Defendants argue that the County is protected
from tort liability in this instance under the immunities and defenses provided in the Political
Subdivision Tort Liability Act, O.R.C. § 2744.02. (ECF No. 27, PageID 334). Plaintiff did not
respond in opposition to the motion for judgment on the pleadings for this specific claim, so
Defendants argue that Plaintiff has effectively abandoned the claim. (ECF No. 37).
A plaintiff abandons undefended claims. PNC Bank, Nat. Ass’n v. Goyette Mechanical
Co., Inc., 88 F.Supp.3d 775, 785 (E.D. Mich. 2015). When a party fails to respond to an argument
in a motion to dismiss, the Court assumes that the party conceded that point and abandoned the
claim. ARJN #3 v. Cooper, 517 F.Supp.3d. 732, 750 (M.D. Tenn. 2021). Nonetheless, analysis
of the merits of the claim leads to the same result: dismissal.
With a few exceptions, O.R.C. § 2744.02(A)(1) dictates that “a political subdivision is not
liable in damages 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.” A county falls within the definition of
“political subdivision.” O.R.C. § 2744.01(F). “The provision or nonprovision of police, fire,
emergency medical, ambulance, and rescue services or protection” are governmental functions.
O.R.C. § 2744.01(C)(2)(a). “[N]egligence (or reckless, wanton, or willful conduct) in hiring,
training, and supervising does not fall within the plain language of any of the exceptions
established by R.C. 2744.01(B)(1) through (5).” McConnell v. Dudley, 144 N.E. 3d 369, 377
(Ohio 2019). Thus, the “reckless, wanton, willful and/or negligent conduct” that Cuyahoga County
allegedly engaged in when “hiring, training, supervising, disciplining, staffing, and retaining
Defendants Lourie and Rodriguez” does not fall into any of the exceptions carved out of Ohio’s
Political Subdivision Tort Liability Act.
Accordingly, Cuyahoga County is protected under O.R.C. § 2744.02 from the liability
alleged in claim twelve. The Court GRANTS Defendants’ motion for judgment on the pleadings
with respect to claim twelve and dismisses claim twelve with prejudice.
The Court GRANTS Defendants’ motion for judgment on the pleadings (ECF No. 27)
with respect to Defendant Budish in claim eight, all relevant defendants in claim nine, claim
eleven, and claim twelve and dismisses those claims with prejudice. The Court DENIES
Defendants’ motion for judgment on the pleadings with respect to Defendant Schilling in claim
eight and Cuyahoga County in claim ten.
IT IS SO ORDERED. “ad Hinavg
Dated: December 20, 2022 □
HONORABLE CHARLES E. FLEMING
UNITED STATES DISTRICT JUDGE
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