, 550 U.S. 544, 570 (2007)
How later courts described this case
- , 550 U.S. 544, 570 (2007)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
:
MICHAEL HARRIS, ET AL., : CASE NO. 5:23-cv-01290
:
Plaintiffs, : ORDER
: [Resolving Docs. 17, 27].
v. :
:
CITY OF AKRON, ET AL., :
:
Defendants. :
:
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
In this police misconduct case, twenty-four Plaintiffs participated in July 2022 Akron
protests after a police suspect, Jayland Walker was shot and died. Plaintiffs allege numerous
constitutional violations arising from various government officials’ conduct during and after
the protests.
Plaintiffs sued three University of Akron police officers, among others: Chief James
Gilbride, Lieutenant Kevin Kabellar, and Officer Christina Ullum (the UA Defendants). The
UA Defendants move to dismiss Plaintiffs’ complaint for failure to state a claim upon which
relief can be granted. With their motion, UA Defendants say that Plaintiffs have not
sufficiently alleged that their 42 U.S.C. § 1983 claims are brought against the UA Defendants
in their official capacities and say that Plaintiffs’ § 1983 claims are barred by the Eleventh
Amendment.
For the following reasons, the Court GRANTS the UA Defendants’ motion to dismiss
for failure to state a claim as to Defendant Gilbride and DENIES the motion as to Defendants
Kabellar and Ullum.
I. BACKGROUND
A. July 4, 2022 Events1
Plaintiffs’ claims against the UA Defendants arise from a July 4, 2022 interaction
between Defendants Kabellar and Ullum, and Plaintiffs Harshita Ray and Jordan Mays.2
On July 4, 2022, Plaintiffs Ray and Mays participated in Akron protests following
Jayland Walker’s death.3 After the protests, Ray and Mays tried to return to their car, that
was parked near the University of Akron’s downtown campus.4 Defendants Kabellar and
Ullum, two University of Akron police officers, followed Plaintiffs Rays and May in a police
car.5
Plaintiffs Ray and Mays were cutting through a parking garage when Officers Kabellar
and Ullum pulled over.6 In pulling Ray and Mays over, Kabellar and Ullum accused Ray
and Mays of trespassing in the parking garage.7 Officer Kabellar then grabbed Mays’ arm,
and the officers handcuffed Mays.8
Plaintiff Ray began videotaping the interaction and asked Defendants Kabellar and
Ullum to stop their aggressive tactics.9 In response, Officer Kabellar grabbed Ray’s arm and
twisted it behind Ray’s back, pushing Ray to the ground.10 Kabellar and Ullum then pressed
Ray into the ground while zip-tying Ray’s wrists.11
1 The Court discusses the factual background of this case only as necessary to resolve the instant motion. The Court takes
as true all well-pleaded factual allegations when deciding a Rule 12(b)(6) motion to dismiss, and nothing in this factual
background section should be construed as the Court's findings of fact.
2 Doc. 1, ¶¶252-65.
3 , ¶254. Jayland Walker was a Black man who was killed by Akron police while unarmed. , ¶2.
4 Doc. 1, ¶¶254-55.
5 , ¶255.
6 , ¶256.
7
8
9 , ¶257.
10 , ¶258.
Plaintiff Ray says that this arrest injured Ray’s leg.12 Ray says that the officers refused
Ray’s request for medical attention.13
Plaintiffs Ray and Mays were then separately detained in police vehicles for an hour
until they were released.14 They received written warnings for criminal trespass and charges
of disorderly conduct. Ray was also banned from the University of Akron’s campus.15
Defendant City of Akron eventually dismissed Plaintiff Mays’ charges on February 8, 2023.16
On March 23, 2023, a jury acquitted Plaintiff Ray of the charges.17
Plaintiffs say that Defendants Kabellar and Ullum’s treatment discouraged them from
participating in future protests.18
B. Procedural History
Plaintiffs initially brought five federal claims (Counts One through Five) and five state
law claims (Counts Eight through Twelve) against the UA Defendants.19 Plaintiffs also
brought one federal claim for supervisory liability (Count Seven) against Chief Gilbride.20
On November 6, 2023, Plaintiffs moved to dismiss the five state law claims against
the UA Defendants without prejudice.21 The UA Defendants did not oppose Plaintiffs’
motion.22 On November 16, 2023, the Court granted Plaintiffs’ motion to dismiss the state
law claims against the UA Defendants without prejudice.23
12 , ¶259.
13
14 , ¶261.
15
16 , ¶264.
17
18 , ¶265.
19 , ¶¶348-96; 421-59.
20 , ¶¶415-20.
21 Doc. 30; Fed. R. Civ. P. 21.
22 At the November 13, 2023 Case Management Conference, the UA Defendants orally confirmed to the Court that they
did not oppose Plaintiffs’ motion. Dkt., Nov. 13, 2023.
The following counts currently remain against the UA Defendants:
(1) 42 U.S.C. § 1983 - violation of the First Amendment, against Defendants Kabellar,
Ullum, and Gilbride;
(2) 42 U.S.C. § 1983 – excessive use of force in violation of the Fourth and Fourteenth
Amendments, against Defendants Kabellar, Ullum, and Gilbride
(3) 42 U.S.C. § 1983 – due process violations under the Fourteenth Amendment, against
Defendants Kabellar, Ullum, and Gilbride;
(4) 42 U.S.C. § 1983 – false arrest and imprisonment in violation of the Fourth and
Fourteenth Amendments, against Defendants Kabellar, Ullum, and Gilbride;
(5) 42 U.S.C. § 1983 – malicious prosecution in violation of the Fourth and Fourteenth
Amendments, against Defendants Kabellar, Ullum, and Gilbride;
(7) 42 U.S.C. § 1983 – supervisory liability for violations of the First, Fourth, and
Fourteenth Amendments, against Defendant Gilbride.
The UA Defendants now move to dismiss the remaining federal claims for failure to
state a claim upon which relief can be granted, because the claims are barred by the Eleventh
Amendment.24
II. LEGAL STANDARD
“In order to survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”25 The
plausibility requirement is not “akin to a probability requirement,” but requires “more than
a sheer possibility that the defendant has acted unlawfully.”26 In deciding a motion to dismiss
under Rule 12(b)(6), “a court should assume the[] veracity” of “well-pleaded factual
allegations.”27
24 Doc. 17, PageID #: 213.
25 , 556 U.S. 662, 679 (2009) ( , 550 U.S. 544, 570 (2007)).
26
The Eleventh Amendment bars suits brought in federal court against a state, unless
the state has waived its sovereign immunity, consented to the suit, or Congress has expressed
an intent to abrogate statutory immunity.28 This Eleventh Amendment bar applies when state
officials are sued in their official capacities for monetary damages.29
However, the Eleventh Amendment does not preclude suits for damages against state
officials in their individual capacities.30 “Only if the purpose of the lawsuit is to coerce state
action by the official sued and to impose a liability which be paid from public funds
does the Eleventh Amendment apply.”31
III. DISCUSSION
The UA Defendants say that the remaining claims are substantively alleged against
them in their official, not individual, capacities.32 As such, they argue that Eleventh
Amendment immunity stops Plaintiffs’ federal claims against them.33
To establish 42 U.S.C. § 1983 claims against a government official in their individual
capacity, a plaintiff must allege, with particularity, that each official was personally involved
in the alleged unconstitutional behavior.34 However, no rule requires that a § 1983
plaintiff’s complaint include the language “in their individual capacity” for such claims to
successfully survive a motion to dismiss.35
Instead, the Sixth Circuit applies a “course of proceedings test” to determine whether
§ 1983 defendants received fair notice of a plaintiff’s intent to hold them personally liable.36
28 , 491 U.S. 58, 71 (1989).
29 , 527 F.3d 500, 507 (6th Cir. 2008) ( )
30 , 463 F.3d 518, 524 (6th Cir. 2006); , 502 U.S. 21, 27 (1991).
31 , 770 F.2d 578 (6th Cir. 1985).
32 Doc. 17, PageID #: 231.
33
34 , 680 F.3d 642, 647 (6th Cir. 2012).
35 , 272 F.3d 769, 772 (6th Cir. 2001).
Under this test, courts consider several factors, including the nature of a plaintiff’s
claims,
any requests for damages, and the defenses raised in response to the complaint.37
A. Defendants Kabellar and Ullum
Defendant Kabellar and Ullum had fair notice that Plaintiffs brought Counts One
through Five against them in their individual capacities. The Eleventh Amendment therefore
does not bar Plaintiffs’ federal claims against them.
First, the complaint tellingly states that the claims against Kabellar and Ullum are
brought against them “in their individual capacities.”38
Plaintiffs also seek monetary damages. While not dispositive, this requested relief
indicates that Plaintiff sued Kabellar and Ullum in their individual capacities.39
Additionally, Kabellar and Ullum asserted “absolute and/or qualified immunity” as an
affirmative defense for § 1983 claims brought against them “in their individual capacity.”40
“The assertion of a qualified immunity defense (even a qualified immunity
defense) indicates that the defendants were aware they could be held personally liable.”41
And, accepting the facts in the light most favorable to the Plaintiffs, Plaintiffs’
allegations personally attribute Defendants Kabellar and Ullum’s actions. The complaint
details how each officer allegedly violated Ray and Mays’ constitutional rights during their
arrest and detentions.
Plaintiffs have therefore met their burden to state a claim for which relief can be
granted as to Defendants Kabellar and Ullum.
37 at 772 n.1.
38 Doc. 1, ¶18.
39 , 313 F.3d 963, 969 (6th Cir. 2002).
40 Doc. 12, PageID #: 123.
B. Defendant Gilbride
Eleventh Amendment immunity aside, Plaintiffs’ allegations against Chief Gilbride fail
to state a claim for which relief can be granted.
1. Counts One Through Five – Constitutional Violations
Defendant Gilbride, the Chief of the University of Akron police force, is mentioned
by name twice in the complaint: in the case caption, and in a paragraph identifying the
parties.42
The complaint otherwise does not contain allegations of Gilbride’s actions.
Specifically, the complaint’s description of the July 4, 2022 interaction between Kabellar,
Ullum, Ray, and Mays does not mention Chief Gilbride. Such a complaint “that fails to
impute concrete acts to specific litigants, fails to state a plausible claim.”43
2. Count Seven – Supervisory Liability
To impose supervisory liability, “a § 1983 plaintiff must show that a supervisory
official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.”44 Plaintiffs have not done so here.
The complaint identifies Chief Gilbride as one of the “supervising officer defendants”
responsible for ordering the use of force and carrying out the City’s unlawful policies.45
Plaintiffs say that the supervising officer defendants conducted meetings, directed officers’
actions towards protestors, and watched officer misconduct via video surveillance.46
42 Doc. 1, ¶18.
43 , 191 F. Supp. 3d 758, 773 (M.D. Tenn. 2016) (quotations and citations
omitted).
44 , 532 F.3d 567, 575 (6th Cir. 2008) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)).
45 Doc. 1, ¶345.
These allegations, however, do not plead with specificity what unconstitutional
actions Gilbride took regarding Ray or Mays, or any other Plaintiffs. Such bare-bones
allegations are insufficient to support an individual claim against Gilbride for supervisory
liability of Kabellar and Ullum’s unconstitutional acts.47
IV. CONCLUSION
For the following reasons, the Court GRANTS Defendant Gilbride’s motion to dismiss
for failure to state a claim. The Court DENIES Defendants Kabellar and Ullum’s motion to
dismiss for failure to state a claim.
IT IS SO ORDERED.
Dated: January 9, 2024
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
47 Courts in the Sixth Circuit disfavor such “group pleading” to establish 42 U.S.C. § 1983 liability.