Thompson v. Village of Phillipsburg, Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

KRISTINA THOMPSON,

Plaintiff, Case No. 3:18-cv-214

vs.

VILLAGE OF PHILLIPSBURG, et al., District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT (1) DEFENDANTS’ MOTION TO

DISMISS BE GRANTED IN PART AND DENIED IN PART; AND (2) PLAINTIFF’S

§1983 CLAIM, FOR FAILURE TO SUPERVISE AGAINST DEFENDANT WYSONG IN

HIS PERSONAL CAPACITY, BE DISMISSED

______________________________________________________________________________

This civil case is before the Court on the motion to dismiss filed by Defendants Village of

Phillipsburg and Mark Wysong. Doc. 36. Plaintiff has filed a memorandum in opposition to

Defendants’ motion, and Defendants have filed a reply. Docs. 41, 43. The undersigned has

carefully considered all of the foregoing, and Defendants’ motion is now ripe for decision.

I.

This is a civil rights case in which Plaintiff asserts, inter alia, federal claims under 42

U.S.C. § 1983. Doc. 35. At the time of the events giving rise to Plaintiff’s claims, Defendant

Justin Sanderson (“Sanderson”) worked as a police officer for the Village of Phillipsburg

(“Phillipsburg”). Doc. 35 at PageID 215. Defendant Mark Wysong (“Wysong”) was

Phillipsburg’s Chief of Police. Id. According to Plaintiff, Wysong was also employed by a private

security company named G4S Security Solutions USA (“G4S”). In that capacity, Wysong hired

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and

Recommendation.

Sanderson as a private security officer before he hired Sanderson as a Phillipsburg police officer.

Id. at PageID 215, 219.

The crux of the allegations presented in this case are horrific and involve Defendant

Sanderson raping, sexually assaulting, and/or battering Plaintiff in a Knights Inn Hotel room in

Dayton, Ohio (hereinafter “the Hotel”) on June 28, 2017 while he was on duty as a Phillipsburg

police officer. Doc. 35 at PageID 215. This was not the first or the last sexual criminal activity

Sanderson engaged in while on duty as a police officer for Phillipsburg, and he has since been

convicted of multiple sex offenses as a result of this and other abhorrent sexual misconduct in the

Montgomery County, Ohio Court of Common Pleas -- where he was sentenced to 43 years in

prison. See State v. Sanderson, No. 28149, 2019 WL 4231369, at *1-5 (Ohio Ct. App. Sept. 6,

2019).

Plaintiff now brings this civil suit against Sanderson, as well as against Phillipsburg and

Wysong in his individual and official capacities. Doc. 35. The motion to dismiss here at issue

involves only the claims Plaintiff asserts against Phillipsburg and Wysong -- namely claims under

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) alleging, inter alia, unconstitutional policies

and procedures, inadequate screening of job applicants, and inadequate discipline of officers. Doc.

36. With regard to the Monell claims against Phillipsburg and Wysong, Plaintiff contends that

Sanderson was hired as a Phillipsburg police officer despite a troubled past that allegedly includes

him being fired and/or resigning from at least two other law enforcement jobs because of

inappropriate sexual behavior. Doc. 35.

Specifically, Plaintiff alleges that Sanderson was fired from the Grandview Medical Center

(“GMC”) Police Department in 2014 after two months because he, inter alia, took a photograph

of his erect penis and showed it to female nursing staff; made contact with a prostitute on several

occasions while on duty, including discussing with her the exchange of twenty dollars for oral sex;

and displayed a handgun and his GMC police badge to a prostitute he invited into his police cruiser.

Id. at 218. Sanderson was also allegedly suspended while employed by the Montgomery County,

Ohio Juvenile Detention Center for accessing pornographic websites while on duty in 2009;

allowing a male to enter the female housing unit in violation of facility policies; and for leaving

his post while on duty for several hours in 2012. Id. at PageID 219-220. Sanderson was also

previously discharged as a police recruit from the Dayton, Ohio Police Academy for misconduct

-- i.e., showing a pattern of doing the bare minimum and disregarding rules -- and was investigated

for making inappropriate sexual comments, specifically asking a female recruit and another male

recruit if they were “making love” during a training exercise. Id. at PageID 219.

Plaintiff contends that Phillipsburg, through Wysong, knew or should have known about

these prior incidents because Wysong previously hired Sanderson as a private security officer in

June of 2015 on behalf of G4S. Id. Plaintiff alleges that, during that hiring process, Wysong was

informed of the contents of Sanderson’s background check, including the prior misconduct. Id. at

219-221. In addition, when applying for the Phillipsburg position, Sanderson provided

Phillipsburg and Wysong with the names, addresses, contact information, and dates of hire for his

past employers, including the foregoing employers. Id. Plaintiff alleges that Sanderson falsely

represented that he had never been asked to resign (or been given the opportunity to resign) from

any employment position, and that he has only been reprimanded, suspended or terminated from

G4S. Id.

Finally, Plaintiff alleges that, after hiring Sanderson, Wysong and Phillipsburg failed to

provide Sanderson with any on-the-job training and Sanderson was not personally supervised

during the majority of his shifts. PageID 221. Plaintiff contends that Phillipsburg had no police

cruisers equipped with cameras or body cameras for police officers and, because Sanderson was

frequently the only officer on duty during his shifts, his police work was left largely unmonitored.

Id.

II.

A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the

sufficiency of the complaint and permits dismissal for “failure to state a claim upon which relief

can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)(2) requires that the complaint

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations’ . . . it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings offering mere

“‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

do.’” Id. (citing Twombly, 550 U.S. at 555).

In determining a motion to dismiss, “courts ‘are not bound to accept as true a legal

conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555 (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)). Further, “[f]actual allegations must be enough to raise a right to relief

above the speculative level.” Id. “[T]he factual allegations must be specific enough to justify

‘drag[ging] a defendant past the pleading threshold.’” DM Research, Inc. v. Coll. of Am.

Pathologists, 170 F.3d 53, 55 (1st Cir. 1999).

In order “[t]o 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.’” Iqbal, 556 U.S. at

678. In addition to well-pleaded allegations in the complaint, the Court may also consider “matters

of public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint,” as well as documents attached to a defendant’s motion to dismiss that are important

to the plaintiff’s claims or if referred to in the complaint. Amini v. Oberlin College, 259 F.3d 493,

502 (6th Cir. 2001) (citation omitted); Composite Tech., L.L.C. v. Inoplast Composites S.A. de

C.V., 925 F. Supp. 2d 868, 873 (S.D. Ohio 2013).

A claim is plausible where “plaintiff pleads 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. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged

-- but it has not ‘show[n]’ -- ‘that the pleader is entitled to relief.’” Id. at 679 (alteration in original)

(citing Fed. R. Civ. P. 8(a)(2)).

III.

Phillipsburg and Wysong first argue that Plaintiff’s claim for inadequate screening should

be dismissed because the alleged constitutional violations were not an obvious consequence of

Sanderson’s hiring. Doc. 36 at PageID 241-42. As to Plaintiff’s claim for failure to supervise and

discipline, Defendants argue that Chief Wysong was not on notice of constitutional violations

committed under his supervision and, consequently, could not have acted with deliberate

indifference. Id. at 243. Finally, Defendants move to dismiss Plaintiff’s claims against Wysong

in his individual capacity on the grounds that he is entitled to qualified immunity. Id. at 245.

Section 1983 imposes liability on any “person who, under color of any statute, ordinance,

regulation, custom or usage, of any State” subjects another to “the deprivation of any rights,

privileges, or immunities secured by the Constitution or laws.” 42 U.S.C. § 1983. Local

government entities are considered persons under § 1983 and “may be sued for constitutional

deprivations.” Monell, 436 U.S. at 690-91. However, such entities cannot be held liable for the

acts of employees or officials on a respondeat superior theory. Id. at 693.

In other words, “a municipal entity may not be sued for injuries inflicted solely by its

employees or agents under § 1983.” Baynes v. Cleland, 799 F.3d 600, 620 (6th Cir. 2015) (citing

Monell, 436 U.S. at 694). Instead, an official policy or custom must be the “moving force” behind

the alleged constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 389 (1989). To

demonstrate Monell liability, one must: (1) identify the policy or custom; (2) connect the policy to

the governmental entity; and (3) show injury of a constitutional magnitude incurred because of

that policy’s execution. Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (internal citations

omitted).

A. Inadequate Screening

“Where a plaintiff presents a § 1983 claim premised upon the inadequacy of an official’s

review of a prospective applicant’s record . . . there is a particular danger that a municipality will

be held liable for an injury not directly caused by a deliberate action attributable to the municipality

itself.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410 (1997).

Municipality liability can be attributed to a single decision to hire only “where the decisionmaker

possesses the final authority to establish policy with respect to the action ordered.” Bible Believers

v. Wayne County, Mich., 805 F.3d 228, 260 (6th Cir. 2015) (quoting, in part, Monell, 436 U.S. at

478). “To prevent municipal liability for a hiring decision from collapsing into respondeat

superior liability, a court must carefully test the link between the policymaker’s inadequate

decision and the particular injury alleged.” Brown, 520 U.S. at 410. In performing such a test, the

Court must determine whether the inadequate screening amounted to not just negligence or

recklessness, but “deliberate indifference.” Id.

“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Id. As the Supreme Court notes:

Unlike the risk from a particular glaring omission in a training regimen, the risk

from a single instance of inadequate screening of an applicant’s background is

not “obvious” in the abstract; rather, it depends upon the background of the

applicant. A lack of scrutiny may increase the likelihood that an unfit officer

will be hired, and that the unfit officer will, when placed in a particular position

to affect the rights of citizens, act improperly. But that is only a generalized

showing of risk. The fact that inadequate scrutiny of an applicant’s background

would make a violation of rights more likely cannot alone give rise to an

inference that a policymaker’s failure to scrutinize the record of a particular

applicant produced a specific constitutional violation. After all, a full screening

of an applicant’s background might reveal no cause for concern at all; if so, a

hiring official who failed to scrutinize the applicant’s background cannot be

said to have consciously disregarded an obvious risk that the officer would

subsequently inflict a particular constitutional injury.

Id. at 410–11. Thus, to prevail on a failure-to-screen claim under § 1983, “[a] plaintiff must

demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of

a particular constitutional or statutory right will follow the decision”; that is “[o]nly where

adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude

that the plainly obvious consequence of the decision to hire the applicant would be the deprivation

of a third party’s federally protected right can the official’s failure to adequately scrutinize the

applicant’s background constitute ‘deliberate indifference.’” Id. at 411.

Defendants argue that Plaintiff’s § 1983 inadequate screening claim must be dismissed

because Sanderson’s background does not provide a sufficient nexus to the constitutional

deprivations allegedly suffered by Plaintiff, i.e., violations of her 4th and 14th Amendment rights.

See PageID 240-42. Defendant’s argument is without merit. Accepting Plaintiff’s factual

assertions as true, the undersigned finds that the plainly obvious consequence of hiring Sanderson,

given his known background, was the constitutional deprivations alleged in the complaint. Doe v.

Magoffin County Fiscal Court, 174 F. App’x 962, 968 (6th Cir 2006) (inquiring whether

defendant’s prior crimes “demonstrate any propensity to commit sex crimes or to imprison

someone”).

Before hiring Sanderson as a Phillipsburg police officer, Wysong first hired Sanderson as

a security guard for G4S and, reviewed the information contained in a background check G4S

ordered on Sanderson at that time. Doc. 35 at PageID 219-20. Consequently, Wysong allegedly

hired Sanderson as a Phillipsburg police officer with actual knowledge of the following:

• Sanderson had been disciplined and suspended on multiple occasions while

employed at the Montgomery County Jouvenile Detention center for,

among other things, viewing pornographic web sites on his employer’s

computers while on duty, allowing a male to enter a unit, which housed

juvenile female residents, and leaving his post on multiple occasions and

leaving the detention center for extended periods of time;

• Within two months of beginning his employment at GMC, Sanderson took

a photograph of his erect penis next to a can of hairspray and harassed

female nursing staff members by displaying the photograph to them;

• GMC suspended Sanderson for an investigation of his violations of the

hospital’s conduct and discipline policy and its sexual harassment policy;

• Sanderson made contact with a prostitute on several occasions while on duty

at GMC, including discussing with her the exchange of twenty dollars for

oral sex and, on at least one occasion, displaying his police badge and gun

to her;

• Sanderson resigned from GMC less than three months after starting there

and while the investigation into his sexual misconduct was still pending;

• Sanderson had little or no prior on-the-job training as a police officer;

• Due to the size and budget of the Phillipsburg Police Department,

Sanderson would frequently be the only police officer on duty during his

shift and would not have any personal supervision; and

• The Village of Phillipsburg had no police cruisers equipped with dash

cameras or body cameras for police officers.

Id. at PageID 220-21. Even if Wysong did not have actual knowledge, a cursory review of

Sanderson’s work history would have revealed Sanderson’s prolific record of prior misconduct.

Indeed, Sanderson provided the names and contact information for the supervisors at his prior

places of employment. Id. at PageID 220.

In light of the foregoing, Plaintiff sufficiently alleges that an adequate screening of

Sanderson’s background would have revealed that he was highly likely to engage in unauthorized

searches and seizures and violations of bodily integrity, and that, even in the face of such an

obvious risk, Wysong hired Sanderson. In a companion case filed with this Court, an inadequate

screening claim against Wysong in his official capacity was not subject to 12(b) dismissal.

Brickles v. Village of Phillipsburg, No. 3:18-cv-193, 2019 WL 3771874, at *4-8 (S.D. Ohio Aug.

9, 2019) report and recommendation adopted 2019 WL 4564743 (S.D. Ohio Sept. 20, 2019) (over

Defendant’s objections, finding a sufficient nexus between Sanderson’s background and the

constitutional violations to allow the inadequate screening claim to go forward). The underlying

constitutional violations in the companion case involved similar misconduct by Sanderson. Id.

The undersigned thus recommends that Defendant’s motion to dismiss Plaintiff’s inadequate

screening claim be denied.

B. Failure to Supervise and Discipline

Plaintiff also asserts a § 1983 claim against Wysong in his official and individual capacities

for failure to supervise and discipline. Doc. 35 at PageID 227-28. Initially, the undersigned notes

that Plaintiff fails to suggest or plead in the complaint that Wysong was present for, or otherwise

knew about, the horrific events that occurred on June 28, 2017 or any other events here at issue.

Because Wysong lacks direct involvement in Plaintiff’s injury, Plaintiff’s attempt to hold Wysong

individually liable for his failure to adequately supervise Sanderson “improperly conflates a § 1983

claim of individual supervisory liability with one of municipal liability.” Phillips v. Roane Cnty.,

534 F.3d 531, 543 (6th Cir. 2008); see also Miller v. Calhoun Cnty., 408 F.3d 803, 817 n.3 (6th

Cir. 2005) (treating a failure to supervise claim as an “official capacity” claim where Plaintiff did

not allege that the defendants had “personal involvement in the alleged misconduct”). Thus,

Plaintiff’s claim for a failure to supervise is properly construed as a Monell claim against Wysong

in his official capacity, i.e., against the Village of Phillipsburg.2 Id.

A municipality can be liable under § 1983 for inaction only where “an officially executed

policy, or the toleration of a custom… leads to, causes, or results in the deprivation of a

constitutionally protected right.” Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996) (citing

Monell, 436 U.S. at 690-91). Plaintiff can prove the existence of a municipality’s illegal policy or

custom of inaction through: (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. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986); Stemler v. City of Florence,

126 F.3d 856, 865 (6th Cir. 1997); Doe, 103 F.3d at 507.

Plaintiff first argues that Phillipsburg had a “custom” of failing to supervise or discipline

its employees. Doc. 41 at PageID 275-76. A custom, for purposes of Monell liability, must “be

so permanent and well settled as to constitute a custom or usage with the force of law.” Monell,

436 U.S. at 691. It must reflect a course of action deliberately chosen from among various

alternatives. City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985). Absent a finding of a custom

or pattern, Plaintiff alternatively contends that a policy of inaction was established through the

single decision not to supervise Sanderson. Doc. 41 at PageID 277 (citing Pembaur, 475 U.S.at

2 For this reason, the undersigned need not determine whether Defendant is entitled to qualified

immunity from individual liability against a claim for a failure to supervise and discipline. While Defendant

Wysong summarily asserts qualified immunity against all of Plaintiff’s claims, he made substantive

arguments regarding qualified immunity only against this claim. The undersigned therefore also makes no

judgment as to whether Defendant is entitled to qualified immunity as to Plaintiff’s other § 1983 claims.

480). Under either the “custom” or “single decision” theory of liability, a Plaintiff must show: (1)

notice or constructive notice on the part of the defendant; (2) tacit approval of the unconstitutional

conduct, such that Defendants’ deliberate indifference in failing to act can be said to amount to an

official policy of inaction; and (3) that Defendant’s custom was the moving force or the casual link

in the constitutional deprivation. Doe, 103 F.3d at 508.

Because Plaintiff failed to state sufficient facts to satisfy the second prong -- a policy of

deliberate indifference -- she cannot establish municipal liability for failure to supervise.

“Deliberate indifference in this context does not mean a collection of sloppy, or even reckless,

oversights; it means evidence showing an obvious, deliberate indifference to sexual abuse.” Id.

Indeed, the record must show that Phillipsburg “consciously never acted when confronted with its

employees’ egregious and obviously unconstitutional conduct.” Id.

Here, there is no suggestion in the complaint that Wysong was actually confronted with

Sanderson’s deplorable conduct. Rather, Plaintiff asserts in her memorandum in opposition to

Defendants’ motion that Wysong failed to supervise Sanderson, and that had he done so,

Sanderson’s misdeeds would have been discovered and his rape of Plaintiff prevented. Doc. 41

PageID 276.

While this may be the unfortunate truth, opportunity, without reason to suspect that it will

lead to a constitutional violation, does not establish deliberate indifference. Mize v. Tedford, 375

F. App’x 497, 501 (6th Cir. 2010); D’Ambrosio v. Marino, 747 F.3d 378, 388 (“Until the county

had notice of persistent misconduct, it did not have ‘the opportunity to conform to constitutional

dictates,’ nor could its inaction have caused the deprivation of [Plaintiff’s] constitutional rights”)

(internal citations omitted). The complaint allegations, taken as true, assert that the lack of

supervision over Sanderson was due less to a “conscious[] act[],” but more to a lack of resources

in the Phillipsburg Police Department. Doe, 103 F.3d at 508; doc. 35 at PageID 221 (“Due to the

size and budget of the Phillipsburg Police Department, Sanderson would frequently be the only

officer on duty”). Without a “deliberate choice to follow a course of action… from among various

alternatives,” the allegations are insufficient to state a custom or policy of the municipality.

Pembaur, 475 U.S. at 483; see also Brickles, 2019 WL 3771874, at *9 (finding Plaintiff’s failure

to discipline claim subject to dismissal because “Wysong had no opportunity to discipline

Sanderson until he learned about his nightmarish conduct”).

C. State Law Claims

Finally, Defendants move to dismiss state law claims that Wysong “negligently,

maliciously, recklessly, and/or willfully breached [his] duty” to exercise a level of care that would

have prevented Plaintiff’s injuries. Doc. 35 at PageID 229. Political subdivision employees are

generally entitled to immunity under Ohio law for state law claims asserted against them in their

individual capacity. Ohio Rev. Code § 2744.03(A)(6). It is well settled that officials are entitled

to immunity from claims of negligent hiring and training because the defense under Ohio Rev.

Code § 2744.03(A)(5) applies. Scott v. Dennis, No. 94685, 2011 WL 94212, *2-4 (Ohio Ct. App.

Jan. 6, 2011); Lane v. Greater Cleveland R.T.A., No. 100829, 2014 WL 4460378, at *3 (Ohio Ct.

App. Sept. 11, 2014). Immunity does not apply, however, where “the employee’s acts or omissions

were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code

§ 2744.03(A)(6)(b).

To the extent Plaintiff alleges that Wysong’s conduct in hiring, training, and supervising

Sanderson rose to reckless conduct, Defendant is not entitled to immunity. Recklessness is

characterized by “the conscious disregard of or indifference to a known or obvious risk of harm

that is to another that is unreasonable under the circumstances.” Wrinn v. Ohio State Highway

Patrol, No. 11AP-1006, 2013 Ohio App. LEXIS 1024, at *35 (Ohio Ct. App. Mar. 26, 2013)

(citing Hackathorn v. Preisse, 663 N.E.2d 384, 386 (Ohio Ct. App. 1995)). The undersigned finds

Plaintiff alleges sufficient facts to suggest that Wysong acted recklessly in hiring Sanderson. Cf.

Lane, 2014 WL 4460378 at *3 (granting a motion to dismiss where Plaintiff failed to “allege that

[the supervisor] acted with malicious purpose or in bad faith, or that it acted recklessly or wantonly

in hiring or retaining [the employee]”). As discussed previously, due to Wysong’s knowledge of

Sanderson’s notorious work history, Plaintiff sufficiently alleges that the risk of harm to third

parties upon hiring him was obvious and that Wysong allegedly consciously disregarded that risk

when he hired Sanderson. Thus, Plaintiff’s claim against Wysong for his failure to adequately

screen Sanderson should remain.

Plaintiff’s state law claims for Wysong’s failure to train and supervise should similarly

stand. Again, Plaintiff need only establish that Wysong acted recklessly to pierce his shield of

statutory immunity. While his training and supervising of Sanderson does not arise to the

heightened level of a custom or policy for the purpose of § 1983 municipal liability, Wysong’s

failure to train or provide any oversight over Sanderson -- a novice police guard with a history of

sexual misconduct -- does establish recklessness. See Brickles, 2019 WL 3771874, at *9

(“Wysong’s position as Police Chief and his knowledge of Sanderson’s previous misconduct while

working in law enforcement should have alerted him to be on the lookout for any misconduct by

Sanderson, the only subordinate police officer in Phillipsburg at that time. But this means that

Wysong was negligent or reckless….”). Plaintiff’s state law claims against Wysong should,

therefore, not be subject to Rule 12(b) dismissal.

IV.

In light of the foregoing, the undersigned RECOMMENDS that: (1) Defendant’s motion

to dismiss be GRANTED in part and DENIED in part; and (2) Plaintiff’s § 1983 claim against

Defendants Wysong and Phillipsburg, for a failure to supervise, train, or control, be DISMISSED.

Date: December 5, 2019 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however,

this Report and Recommendation was served upon you by mail, this deadline is extended to

SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the

deadline to file objections by filing a motion for extension, which the Court may grant upon a

showing of good cause.

Any objections filed shall specify the portions of the Report and Recommendation objected

to, and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based, in whole or in part, upon matters occurring of record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs.

A party may respond to another party’s objections within FOURTEEN days after being

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,

however, this Report and Recommendation was served upon you by mail, this deadline is extended

to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50

(6th Cir. 1981).