# Hollis v. Erdos

> District Court, S.D. Ohio · May 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10375502

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DONTEZ HOLLIS, et al.,

Plaintiffs,
Case No. 1:19-cv-436
v. JUDGE DOUGLAS R. COLE

RONALD ERDOS, et al.,

Defendants.

OPINION AND ORDER
This cause comes before the Court on Defendants’ Motion for Judgment on the
Pleadings (Doc. 12) and Plaintiffs’ Motion for Leave to File an Amended Complaint
(Doc. 19). For the following reasons, the Court DENIES IN PART and GRANTS IN
PART Defendants’ Motion and GRANTS Plaintiffs’ Motion.
BACKGROUND
For purposes of the present motions, the Court accepts as true the following
facts, which are set forth in Plaintiffs’ Complaint filed June 7, 2019. (See Compl., Doc.
1, #1–211). Plaintiff Dontez Hollis (“Hollis”) was formerly incarcerated in the
Southern Ohio Correctional Facility (“SOCF”), but at the time this proceeding was
initiated, he had been released. (Compl. at ¶ 5, #3). Plaintiff Darryl Pascol (“Pascol”)
is currently incarcerated at the Madison Correctional Institution, but at the time of
the alleged events, was also housed at SOCF. (Id. at ¶ 6, #4).

1 Refers to PageID number.
A. The June 4, 2017 Stabbing.
Hollis’s and Pascol’s claims all stem from an alleged stabbing that occurred
while they were incarcerated at SOCF. On June 4, 2017, Hollis and Pascol were

permitted to leave their respective cells for recreation time. (Id. at ¶ 16, #5). Usually,
before inmates are permitted out of their cells for recreational time, they are strip-
searched by corrections officers, which is the “normal procedure” at SOCF. (Id. at
¶¶ 16–17, #5–6). That day, however, Hollis and Pascol were “not strip searched or
thoroughly frisked” before being let out for recreation time. (Id. at ¶ 19, #6). Once
outside their cells, Hollis and Pascol were “handcuffed to a table,” which allowed them
“only a few inches of hand movement,” but that was enough mobility to play cards

with the two other inmates also handcuffed to the table. (Id. at ¶¶ 19–20).
While the four men were “peacefully playing spades[,]” Hollis and Pascol
observed two corrections officers, Defendant Officers Faye (“Officer Faye”) and Dalton
(“Officer Dalton”) talking to another inmate, Gregory Reinke (“Reinke”), who was still
in his cell. (Id. at ¶¶ 22–23). They allege that Reinke is “a Caucasian inmate” and
“known white supremacist and member of the Aryan Brotherhood gang.” (Id. at ¶ 24).

Hollis and Pascol imply that they are African American. (Id. at ¶ 25 (“Defendant
Officers took Reinke out of his cell and placed him at a table next to the table Mr.
Hollis and Mr. Pascol and the other African American inmates were playing cards.”)).
Hollis and Pascol then allege that Officers Faye and Dalton, after similarly
failing to strip search Reinke, but “before placing [him] at the table next to the
Plaintiffs,” either gave Reinke, or knew or should have known that Reinke had, a key
or some “other device” that would permit him to remove his handcuffs. (Id. at ¶ 26,
#6–7). Reinke, because he had this “key” or “other device,” was able to, “about 20-30
minutes” later, “unlock his handcuffs[,]” “pull[] an 8-inch blade out of his sock[,]” and
begin stabbing or attempting to stab Hollis, Pascol, and the two other inmates at their

table. (Id. at ¶ 29, #7). Still handcuffed to the table, Hollis and Pascol were initially
unable to defend themselves, but Hollis eventually “pull[ed] his hands out of the
handcuffs” and “tackled Reinke to the ground.” (Id. at ¶ 39, #8). Before that
happened, though, Reinke had already stabbed Pascol and the two other inmates
several times. (Id. at ¶¶ 33–34, #7).
Hollis and Pascol allege that Officers Dalton and Faye did not immediately

respond to the attack. Instead, they allege the Officers “stood and watched” from “ten
feet away behind a locked door[,]” and “laughed” as Reinke carried out the attack. (Id.
at ¶¶ 35–38, #7–8). Only after Hollis freed himself did Officers Dalton and Faye
intervene, and even then, they allegedly did so by pepper spraying Hollis, not Reinke.
(Id. at ¶¶ 40–42, #8).
Hollis and Pascol further allege that while Pascol and the other inmates were
“bleeding out with severe injuries,” Officers Faye and Dalton did not provide first aid,

but again “just stood and watched.” (Id. at ¶¶ 43, 45). They also allege that Defendant
John Doe Sergeant (“Sergeant John Doe”) was present “after the stabbing” and “did
not provide any first aid[,]” “direct any other else [sic] to provide first aid[,]” and
“attempted to prevent and deny” the inmates from getting proper medical attention.
(Id. at ¶¶ 46–47, #8–9). In fact, they allege Officers Faye, Dalton, and Sergeant John
Doe said to each other “‘we should just let them die[,]’” in reference to Pascol and the
two other inmates who Reinke stabbed. (Id. at ¶ 48, #9).
Hollis and Pascol allege it took “at least ten minutes” for “the nurses from

health care” to arrive and begin administering first aid. (Id. at ¶ 49). Pascol was life
flighted to The Ohio State University hospital; Hollis was injured escaping his
handcuffs and in the ensuing struggle, but was apparently treated at SOCF. (Id. at
¶¶ 50–51). Hollis alleges he filed his grievance shortly after the incident; Pascol
alleges he filed his grievance “as soon as [he] was taken off life support.” (Id. at ¶¶ 58–
59, #10).

B. Hollis And Pascol’s Complaint.
The two men subsequently filed suit against Officers Faye, Dalton, Warden
Ronald Erdos (“Warden”), Sergeant John Doe, and John Doe Nurses and Corrections
Officers. They assert six counts, all of which arise under 42 U.S.C. § 1983.2 Two of
the claims, though, Count I and Count VI, are of particular importance to the pending
Motion for Judgment on the Pleadings. That is because those two claims are the only

ones that are asserted in whole (Count VI), or in part (Count I), against the Warden
in his personal capacity.
In terms of their claims against the Warden, Hollis and Pascol make several
conclusory allegations in the background section of their Complaint. Specifically, they
claim that Reinke was a “known threat of violence in the prison,” had a history of

2 Although Hollis and Pascol name John Doe Nurses and John Doe Corrections Officers in
the Complaint, they do not specify which counts, if any, are asserted against those unnamed
defendants.
“misconduct and violence[,]” that he was “known by Defendant Warden and the
staff … to carry shanks in violation of prison rules[,]” and that he had “been caught
with shanks and/or knives on at least five different occasions.” (Compl. at ¶¶ 53–56,

#9). Specifically, they allege that Reinke “attempted to stab inmates on at least two
other occasions prior to” this incident. (Id. at ¶ 56, #10). They further allege Reinke
was “a threat to the safety of others,” but claim the Warden “did nothing to prevent”
this attack and that he “failed to train and supervise his subordinates” and “implicitly
approved, authorized, or acquiesced” to unconstitutional behavior by the other
Defendants. (Id. at ¶ 57, #10).

Based on these, and other, allegations, in Count I of the Complaint, Hollis and
Pascol allege that three Defendants—Faye, Dalton, and the Warden—violated their
Eighth Amendment rights by failing to protect them from Reinke’s attack.
Importantly, they do not allege that the Warden was present when the attack
occurred, or in any way encouraged or directed the conduct of the corrections officers
in connection with this particular event. Rather, picking up on the theme from the
background allegations, they claim that the Warden knew of the risks that Reinke

presented, but that he was deliberately indifferent to those risks. (Id. at ¶ 74, #12).
In Count VI, labeled “Supervisory Individual Liability” and directed solely at
the Warden, Hollis and Pascol allege that the Warden “was responsible for the
supervision, discipline, and control of all Southern Ohio Correctional Facility
correctional officers,” and that he “at least implicitly approved, authorized, or
acquiesced in his/her [sic] subordinates’ misconduct.” (Id. at ¶ 122, #19). They further
allege that, “[d]espite [the Warden’s] knowledge of a threat to inmate safety,
Defendant Warden did not train and supervise Defendant Officers on dealing with
inmates who pose a threat to other inmates’ safety.” (Id. at ¶ 125, #20). Once again,

though, they do not allege that the Warden was in any way directly involved with
this specific incident, other than that it followed from his alleged failure to train and
supervise generally.
PENDING MOTIONS
On August 20, 2019, the Defendants filed their Answer (Doc. 6) and on October

2, 2019, they filed a Motion for Judgment on the Pleadings. (Defs.’ Mot. for J. on the
Pleadings (“Defs.’ Mot.”), Doc. 12, #62–75). While the Defendants’ Motion was
pending, Hollis and Pascol filed a Motion for Leave to Amend their Complaint. (Pls.’
Mot. for Leave to Am. Compl. (“Pls.’ Mot.”), Doc. 19, #122–25). Since that time, the
parties have moved forward with discovery.

A. Motion For Judgment On The Pleadings.
Defendants make two principal arguments in their Motion. First, they argue
that all six counts set forth in the Complaint are barred by Ohio’s two-year statute of
limitations, as the Complaint was filed three days after that two-year limitations
period expired. (Defs.’ Mot. at #63). Second, in the event the entire Complaint is not
untimely, Defendants argue that Hollis and Pascol fail to state a viable personal-
capacity claim under 42 U.S.C. § 1983 against the Warden (either under Count I or

Count VI) because there is no “respondent [sic] superior” liability under that statute.
(Id.).
Hollis and Pascol disagree. First, they argue that their claims are timely
because the Prison Litigation Reform Act tolled the statute of limitations while they
exhausted their administrative remedies. (Pls.’ Resp. in Opp’n to Defs.’ Mot. (“Pls.’

Opp’n”), Doc. 13, #80). Second, they argue that the claim against the Warden is viable
because they are making a supervisory liability claim, namely that he “‘approved or
knowingly acquiesced in the unconstitutional conduct of the offending
subordinate[s].’” (Id. at #84 (quoting Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81 (6th
Cir. 1995))). This, they argue, is based on the fact that the Warden both failed to train
and supervise corrections officers and that he knew or should have known that

Reinke had a propensity for violence and stabbing inmates, based on Reinke’s prior
conduct. (Id. at #86).
B. Motion For Leave To File Amended Complaint.
On January 15, 2020, Hollis and Pascol filed a Motion for Leave to Amend their
initial Complaint. (Pls.’ Mot. at #122). Rather than attaching the proposed Amended
Complaint, the Motion requested leave to file such a complaint within forty-five days

from the date of that Motion, or, in other words, by Saturday, February 29, 2020. The
Motion suggests that the sole purpose of the proposed amendment was to identify
some of the John Doe defendants. (See id.).
Defendants objected to this Motion on two grounds. First, they argued that
Hollis and Pascol were required to, but did not, attach their amended complaint to
that Motion. (Defs.’ Resp. in Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”), Doc. 21, #168–69).

Second, they claimed that it would be futile to seek to add new defendants at this
point, in place of the John Doe defendants, as the statute of limitations has run on
any such claims. (Id. at #169–70). In response, Hollis and Pascol agreed that they are
seeking “to add new parties[,]” but argued that they should be permitted to do so

because the new parties “have received satisfactory notice.” (Pls.’ Reply to Defs.’
Opp’n (“Pls.’ Reply”), Doc. 22, #173). Hollis and Pascol did not file a proposed amended
complaint by February 29, 2020.
The current procedural posture leaves the Court at somewhat of a
disadvantage. Defendants have moved for judgment on the pleadings, but Plaintiffs
have filed a motion for leave to amend their Complaint. Given the lack of an actual

proposed amended complaint, the Court is left to guess at the substance of that
proposed pleading. That being said, the Court will take Hollis and Pascol at their
word, and assume that any proposed amendments would go only to identifying named
defendants to replace John Doe defendants, but would not otherwise change the
substance of their claims. Thus understood, any such amendment would not impact
the two arguments that Defendants advance in their Motion for Judgment on the
Pleadings. Accordingly, the Court will first consider the Defendants’ challenge to the

extant pleading, and then turn to the question of whether leave to amend to add new
parties is appropriate.
LAW AND ANALYSIS
A. Standard Of Review.
A motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is analyzed in the same manner as a motion to dismiss under Rule 12(b)(6). See
Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008). This
means all factual allegations in the complaint are construed in a light most favorable
to the plaintiff, with all their allegations accepted as true, and all reasonable

inferences drawn in their favor. See Bullington v. Bedford Cty., 905 F.3d 467, 469 (6th
Cir. 2018). All a plaintiff need do is provide “a short and plain statement of the claim
showing that the pleader is intitled to relief.” Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).
But that short and plain statement must offer more than mere “labels and
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “‘[A] formulaic recitation of

the elements of a cause of action will not do.’” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). There must be “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.
at 570). This means a complaint must contain “either direct or inferential allegations
respecting all material elements to sustain recovery under some viable legal theory.”
Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (quotation omitted).
“Conclusory allegations or legal conclusion masquerading as factual allegations will

not suffice.” Id. (citing Meziboy v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). In sum,
an action will be dismissed under this standard where “there is no law to support the
claims made.” Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 967 F. Supp. 2d 1164,
1169 (S.D. Ohio 2013) (citing Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702
(6th Cir. 1978)). The same holds where “the facts alleged are insufficient to state a
claim.” Id.
B. Hollis And Pascol’s Claims Are Not Time Barred, But The Warden Is
Entitled To Judgment On The Pleadings.
The Defendants raise two issues in their Motion. First they claim that the
Complaint is time barred. Second, even if the Complaint was timely, they argue that
the two personal-capacity § 1983 claims asserted against the Warden—a portion of
Count I and the entirety of Count VI—are fatally flawed. In particular, they claim
that he is entitled either to judgment on the pleadings or to qualified immunity. As

resolving the statute of limitations issue cuts across all of Hollis and Pascol’s claims,
the Court starts there, before turning to the Warden-specific arguments.
1. Hollis And Pascol’s Claims Are Not Time Barred.
Only if it is apparent on the face of the complaint that Hollis and Pascol’s suit
is time-barred would judgment on the pleadings in favor of the Defendants on statute
of limitations grounds be proper. See Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir.

1994). Of course, a prerequisite to bringing a § 1983 claim, like any other claim, is
that it must be brought within the applicable statute of limitations period. And it is
settled that state law governs the statute of limitations applicable to a § 1983 action,
but federal law governs when that period begins to run. Wallace v. Kato, 549 U.S.
384, 388 (2007) (“[T]he accrual date of a § 1983 cause of action is a question of federal
law that is not resolved by reference to state law.”).

As to the former, “the appropriate statute of limitations for 42 U.S.C. § 1983
civil rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10, which
requires that all actions for bodily injury be filed within two years after their accrual.”
Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc). And as to the
latter, under federal law, the statute of limitations period begins to run when the
claim accrues, which is when the plaintiff “knows or has reason to know of the injury
which is the basis of his action.” Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007)

(quotation omitted); see also Wallace, 549 U.S. at 388 (“[I]t is the standard rule that
accrual occurs when the plaintiff has a complete and present cause of action, that is,
when the plaintiff can file suit and obtain relief.” (quotation and citation omitted));
Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) (citing Keating v. Carey, 702 F.2d
377, 382 (2d Cir. 1983)) (“The statute of limitations commences to run when the
plaintiff knows or has reason to know of the injury which is the basis of his action.”).

“Stated differently, ‘in determining when the cause of action accrues in § 1983 cases,
we look to the event that should have alerted the typical lay person to protect his or
her rights.’” Cooey, 479 F.3d at 416 (quoting Trzebuckowski v. City of Cleveland, 319
F.3d 853, 856 (6th Cir. 2003)).
Arguing that a prisoner’s claim is untimely is an affirmative defense. See
Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012) (citing Fed. R. Civ. P. 8(c) (“The
statute of limitations, like exhaustion of administrative remedies, is an affirmative

defense.”). “As such, Defendants [bear] the ultimate burden of proof on that issue.”
Id. (citing Fonseca v. Consolidated Rail Corp., 246 F.3d 585, 590 (6th Cir. 2001)). “A
complaint is subject to dismissal without any further proof if ‘the allegations show
that relief is barred by the applicable statute of limitations.’” Id. (quoting Jones v.
Bock, 549 U.S. 199, 215 (2007).
On the facts here, there is little question that, as Defendants argue, the day of
the alleged attack, June 4, 2017, is the day Hollis’s and Pascol’s action accrued.
Defendants argue this means the statute of limitations period expired two years later,

on June 4, 2019, making the June 7, 2019 Complaint untimely by three days.
While this two-year-from-accrual calculation seems straightforward, there is a
wrinkle. The claims here are subject to the Prison Litigation Reform Act (“PLRA”),
which applies to all “federal claims seeking redress for prison circumstances or
occurrences[.]” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015). The PLRA requires
that “[n]o action shall be brought with respect to prison conditions under section 1983

of this title, or any other Federal law, by a prisoner confined to any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “This language unambiguously requires exhaustion
as a mandatory threshold requirement in prison litigation.” Brown v. Morgan, 209
F.3d 595, 596 (6th Cir. 2000).
This exhaustion requirement seems to leave prisoners with civil rights claims
in a Catch-22: fully exhaust their administrative remedies only to find that their

claims in court are time barred, or file a claim in court before fully exhausting their
administrative remedies and risk being dismissed under the PLRA. Recognizing this,
the Sixth Circuit has repeatedly held that the statute of limitations applicable to a
prisoner’s civil rights claim is tolled while the plaintiff exhausts the required
administrative remedies. See Brown, 209 F.3d at 596 (“[T]he statute of limitations
which applied to [plaintiff’s] civil rights action was tolled for the period during which
his available state remedies were being exhausted.”); Waters v. Evans, 105 F. App’x
827, 828–29 (6th Cir. 2004) (same).
Thus, as part of their burden on the statute of limitations issue, “[d]efendants

[are] required to show that [a prisoner’s] claims were untimely even after tolling for
the period during which [he was] exhausting [his] administrative remedies.” Surles,
678 F.3d at 458 (denying summary judgment because the defendants “did not offer
enough evidence” of untimeliness, and there was a genuine dispute “as to how much
time should be tolled” while the prisoner “was exhausting, or attempting to exhaust,
his administrative remedies”); see also, e.g., Daugherty v. K.S.P. Med. Dep’t, No. 5:17-

CV-P41, 2018 WL 1095820, at *3 (W.D. Ky. Feb. 27, 2018) (noting both failure to
exhaust and statute of limitations arguments are “affirmative defenses, and
Defendants bear the burden of proving” them); Thomas v. Slusher, No. 1:17-cv-794,
2018 WL 931301, at *4 (N.D. Ohio Feb. 16, 2018) (citing Surles, 678 F.3d at 456–58
(citing Jones v. Bock, 549 U.S. 1999 (2007))) (requiring the defendants, in arguing a
prisoner failed to exhaust and that his claims are untimely, to bear the burden as to
those defenses). As the court in Daughtry noted, after Jones, “the Sixth Circuit has

concluded that the exhaustion affirmative defense is best raised in a motion for
summary judgment … because proof of lack of exhaustion generally requires resort
to matters outside the pleadings, such as affidavits and documentary evidence.”
Daughtry, 2018 WL 1095820 at *3. Such is the case with statute of limitations
arguments too. See id. (“Without evidence regarding … when any such
administrative grievances were filed or finished, the Court cannot calculate how long
the statute of limitations may have been tolled or whether the statute of limitations
has run on Plaintiff’s equal protection claims.”).
Accordingly, in arguing that the statute of limitations has run, it was the

Defendants’ responsibility to account for any tolling that may have occurred. They
failed to do so. (See Defs.’ Mot. at #64 (arguing the claim accrued on June 4, 2017,
that the complaint was filed on June 7, 2019, and was therefore untimely)). In fact,
they did not even really try.
Rather than accounting for any tolling that would have arisen based on Hollis’s
and Pascol’s specific allegation that they participated in SOCF’s grievance process,

(see Compl. at ¶¶ 58–59, #10), Defendants instead argue that federal law does not
provide for such tolling. In making this argument, Defendants ask this Court to
disregard settled precedent from the Sixth Circuit (and several other Circuits)
holding the opposite. See Brown, 209 F.3d at 596; see also, e.g., Johnson v. Garrison,
--- F. App’x ----, 2020 WL 1487653, at *4 (10th Cir. Mar. 24, 2020) (citing Brown, 209
F.3d at 596) (holding that Oklahoma’s lack of a tolling provision to allow for PLRA
exhaustion is “contrary to § 1983’s goals” and that the statute of limitations should

be tolled under federal equitable principles); Battle v. Ledford, 912 F.3d 708, 718–20
(4th Cir. 2019) (providing for tolling of a prisoner’s § 1983 claim despite a state “no-
tolling” provision); Gonzalez v. Hasty, 651 F.3d 318, 325 (2d Cir. 2011) (noting several
Circuits “have all adopted the rule that equitable tolling is applicable to the time
period during which a prisoner-plaintiff is exhausting his administrative remedies
pursuant to the PLRA”); Brown v. Valoff, 422 F.3d 926, 942–43 (9th Cir. 2005) (“We
do not regard the intersection of the exhaustion and statute of limitations
requirements as creating problems for prisoners, however, as we agree with the
uniform holdings of the circuits … that the applicable statute of limitations must be

tolled while a prisoner completes the mandatory exhaustion process.”); Clifford v.
Gibbs, 298 F.3d 328, 333 (5th Cir. 2002) (“We conclude that equitable tolling in this
case is likewise appropriate … [and[ we grant [the plaintiff-prisoner’s] request to
equitably toll limitations on his § 1983 action during … any additional state
administrative proceedings.”).
In support of their no-tolling argument, Defendants ask this Court to hold that

two Sixth Circuit cases, Brown, 209 F.3d at 596, and Surles, 678 F.3d at 458, which
specifically discuss the availability of such tolling, were “implicitly overruled by Ross
[v. Blake, 136 S. Ct. 1850 (2016)] and [Jones v.] Bock[, 549 U.S. 199 (2007)].” (Defs.’
Mot. at #95–96). Defendants claim that these two more recent Supreme Court
decisions mandate strict adherence to the PLRA’s text, and Defendants note that the
PLRA’s text does not include any reference to tolling. Thus, according to Defendants,
post-Ross and Bock, the Supreme Court’s earlier decisions in Hardin v. Straub, 490

U.S. 536 (1989), and Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478
(1980), which consigned questions of tolling exclusively to state law, now control. And
here, Ohio law does not provide for administrative tolling in this context.
But “[t]he undersigned is bound by the controlling Sixth Circuit precedent in
the absence of any Supreme Court decision clearly overturning such precedent.”
Goens v. Warden, Lebanon Corr. Inst., No. 1:09-cv-650, 2010 WL 3399335, at *3 n.7
(S.D. Ohio Apr. 14, 2010) (Black, J.) (declining to hold that equitable tolling is
inapplicable to habeas corpus cases). When an “intervening decision neither expressly
or implicitly overrules the prior Court of Appeals decision, a district court must be

extremely careful in concluding that circuit precedent is no longer good law[.]”
Hammonds v. United States, No. 2:05-CR-52; 2:16-CV-61, 2017 WL 922678, at *2
(E.D. Tenn. Mar. 3, 2017) (quotations and citations omitted). A district court “should
only deviate from such authority where it is powerfully convinced that the circuit will
overrule itself at the next available opportunity.” Id. (quotations and citations
omitted). “This is a district court, and it must follow binding precedent when such

precedent exists.” D’Ambrosio v. Bagley, 688 F. Supp. 2d 709, 721 (N.D. Ohio 2010).
Here, this Court is not “powerfully convinced” that Brown’s overruling is
imminent. If anything, the Defendants’ report of its demise seems greatly
exaggerated. The Sixth Circuit, even after Ross and Bock, has cited Brown for the
exact proposition at issue here—that claims subject to the PLRA are tolled while a
prisoner exhausts administrative remedies. See Franklin v. Fischer, No. 16-6464,
2017 WL 4404624, at *3 (6th Cir. May 15, 2017) (“[T]he statute of limitations

applicable to a prisoner’s civil rights action is tolled for the period during which his
available state remedies were being exhausted, [but] such tolling does not apply to
the pursuit of remedies outside the prison grievance system.” (quotation omitted)
(citing Brown, 209 F.3d at 596)). And the recent Tenth and Fourth Circuit decisions,
which were likewise issued after Ross and Bock, continue to find federal equitable
tolling applicable to § 1983 claims that are subject to the PLRA. See Battle, 912 F.3d
at 718–20; Garrison, 2020 WL 1487653 at *4 (10th Cir. Mar. 24, 2020) (citing Brown,
209 F.3d at 596). The Sixth Circuit is of course free to revisit Brown, in light of Ross
and Bock, but unless and until it does so, this Court declines to assume that the

decision is ineluctably consigned to the scrap heap.
Given the availability of such tolling, Defendants have not carried their burden
of demonstrating that the claims here are untimely. As already noted, Hollis and
Pascol specifically allege in their Complaint that they pursued administrative
remedies by grieving their claims through SOCF’s internal process, to no avail.
(Compl. at ¶¶ 58–59, #10). Drawing all inferences in their favor, as the Court must

at this stage of the proceedings, it is plausible—indeed, exceedingly likely—that their
participation in SOCF’s grievance process would have lasted long enough to toll the
statute of limitations for the three days needed to make their June 7, 2019 Complaint
timely.
As the Court concludes that Hollis and Pascol are entitled to tolling for the
time that they were involved in the prison’s grievance process, and as that tolling
almost certainly bridges the three-day gap here, the Court DENIES Defendants’

Motion for Judgment on the Pleadings on the statute of limitations issue. (Of course,
if the actual facts relating to plaintiffs’ participation in the grievance process reveal
that three days of tolling is not warranted, the Court can re-address this issue on
summary judgment.)
2. The Claims Against The Warden Should Be Dismissed.
While the Court declines to dismiss the case on limitations grounds, the Court
will grant the Defendants’ Motion as it relates to the § 1983 claims against the

Warden. “To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West
v. Atkins, 487 U.S. 42, 48 (1988). Hollis and Pascol cannot hold the Warden personally
liable under § 1983 merely on a basis of respondeat superior. See Winkler v. Madison
Cty., 893 F.3d 877, 898 (6th Cir. 2018) (citing Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984)); see also Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691–92

(1978) (holding that respondeat superior liability does not exist under § 1983). Rather,
individuals sued in their personal capacity under § 1983 are liable only for their own
unconstitutional behavior. See Murphy v. Grenier, 406 F. App’x 972, 974 (6th Cir.
2011) (“Personal involvement is necessary to establish section 1983 liability.”).
To hold a supervisory official personally liable under § 1983, a plaintiff must
demonstrate that the official actively engaged in some unconstitutional behavior. Id.;

see also Iqbal, 556 U.S. at 676 (2009) (“Because vicarious liability is inapplicable
to … § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”);
Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (“Persons sued in
their individual capacities under § 1983 can be held liable based only on their own
unconstitutional behavior.”). This means “the supervisor must have abdicated his
specific job responsibility, with the ‘active performance of the supervisor’s individual
job function … directly resulting in the constitutional injury.’” Winkler, 893 F.3d at
898–99 (quoting Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006)
(emphasis in original)). Personal involvement requires “at a minimum” that a state

actor “at least implicitly authorized, approved, or knowingly acquiesced” to the
underlying constitutional violation. Graves v. Malone, --- F. App’x ----, No. 18-2296,
2020 WL 1900458, at *5 (6th Cir. Apr. 17, 2020) (quotation omitted); see also Wingo
v. Tenn. Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (per curiam) (“In order
to find supervisory personnel liable, a plaintiff must allege that the supervisors were
somehow personally involved in the unconstitutional activity of a subordinate, or at

least acquiesced in the alleged unconstitutional activity of a subordinate.” (quotation
and citation omitted)); Bellamy, 729 F.2d at 421 (“At a minimum, 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.”).
Similarly, a supervisor’s failure to act, without more, is insufficient to establish
supervisory liability. See Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir.
2016) (“[A] mere failure to act will not suffice to establish supervisory liability.”

(citations omitted)).
Relatedly, a failure to protect claim requires Hollis and Pascol to plausibly
allege that the Warden “acted with ‘deliberate indifference’ to a substantial risk of
serious harm.” Hester v. Morgan, 52 F. App’x 220, 222 (6th Cir. 2002) (citing Farmer
v. Brennan, 511 US. 825, 834 (1994)). “Deliberate indifference is a state of mind more
blameworthy than negligence, but it entails ‘something less than acts or omission for
the very purpose of causing harm or with knowledge that harm would result.’” Id.
(quoting Farmer, 511 U.S. at 835). The Warden “must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Id. (quotation omitted).
In their Complaint, Hollis and Pascol allege two personal-capacity § 1983
claims against the Warden, asserting, at various points that:
66. Defendant Faye, Defendant Dalton and Defendant Warden all
knew that Gregory Reinke was dangerous and had stabbed inmates
before, yet still permitted him to be in general population during
recreational time.
…
74. Defendant Warden … owed Plaintiffs a duty to act and not be
deliberately indifferent to known serious risks of physical harm against
inmates. His neglect to do anything to keep Gregory Reinke away from
other inmates … violated Plaintiffs’ constitutionally protected right to
be free from bodily harm.
…
121. … Defendant Warden was a warden and supervisor acting under
the color of law in his/her actions and omissions and at least implicitly
approved, authorized or acquiesced in the unconstitutional conduct
exhibited by his/her subordinate defendants named
herein. … Defendant Warden established policies for his/her
subordinates to follow which permitted the Defendant Officers to carry
out the constitutional violations described herein.
…
125. Despite his knowledge of a threat to inmate safety, Defendant
Warden did not train and supervise Defendant Officers on dealing with
inmates who pose a threat to other inmates’ safety.
(Compl., ¶¶ 66, 74, 121, 125, #11–12, 19–20).
These personal-capacity claims against the Warden fail for three reasons.
First, the failure-to-protect claim falters because there is no factual allegation in the
Complaint that indicates the Warden was directly involved or that he implicitly
encouraged, acquiesced or authorized the alleged attack. To be sure, the Complaint
says that the Warden “implicitly approved, authorized or acquiesced in the

unconstitutional conduct[.]” (See, e.g., Compl. at ¶ 121, #19). But the complaint fails
to allege any facts that plausibly support that conclusion, and conclusions absent
facts don’t cut it. Twombly, 550 U.S. at 570.
That is, even assuming Reinke posed a “substantial risk of serious harm” to
Hollis and Pascol, there are still no facts in the Complaint that plausibly alleges the
Warden knew about, and then consciously disregarded, that risk. See, e.g., Hester, 52

F. App’x at 222–23 (granting summary judgment on a failure to protect claim because
“even if the living conditions [at the prison] did present a substantial risk of serious
harm, [the prisoner] has not provided evidence that, when viewed in the light most
favorable to him, demonstrates that [the Warden] knew of that risk”).
At best, the Complaint offers a vague assertion that the Warden “knew that
Gregory Reinke was dangerous and had stabbed inmates before.” (Compl. at ¶ 66,
#11). That allegation alone is insufficient to state a plausible claim against the

Warden for failing to protect Hollis and Pascol in this particular instance. Hollis and
Pascol have thus failed to allege facts from which the Court can infer that the Warden
was deliberately indifferent to the known risk of harm as it applied to them, which is
necessary to state a prima-facie-failure-to-protect claim. See Farmer, 511 U.S. at 828.
“Although the assault on the plaintiff was unfortunate, and the injuries he suffered
regrettable … [d]espite precautions, it is impossible to stop all random acts of violence
in the prison environment.” Hester, 52 F. App’x at 225.
Second, while Hollis and Pascol allege the Warden failed to act, this is not

enough to hold him liable under § 1983. See Peatross, 818 F.3d at 241 (“[A] mere
failure to act will not suffice to establish supervisory liability.”).
Finally, the “Supervisory Individual Liability” claim (Count VI) fails because
it “improperly conflates a § 1983 claim of individual supervisory liability with one of
municipal liability.” Harvey v. Campbell Cty., 453 F. App’x 557, 563 (6th Cir. 2011)
(quotation omitted) (citing Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir.

2005)); see also Phillips v. Roane Cty., 534 F.3d 531, 543, (6th Cir. 2008) (same). Cases
like Harvey and Phillips make clear that:
[a] supervisor is not [individually] liable pursuant to § 1983 for failing
to train unless the supervisor “either encouraged the specific incident of
misconduct or in some other way directly participated in it. At a
minimum a plaintiff must show that the official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional
conduct.”
Phillips, 534 F.3d at 543 (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999)). As noted above, there are insufficient allegations on that front here.
Plaintiffs seek to escape that result by pointing to Harris v. Ervin, No. 1:18-cv-
142, 2019 WL 1317848, at *3 (S.D. Ohio Mar. 22, 2019), and Peatross, 818 F.3d at
242. (See Pls.’ Opp’n at #83–85). Those cases do not help them, though. To be sure,
Harris notes that, “[w]here an official’s execution of his or her job function causes
injury to the plaintiff, the official may be liable under the supervisory-liability
theory.” Harris, 2019 WL 1317848, at *3 (quotation and citation omitted). But such
liability turns on a showing of a “causal connection between a defendant’s wrongful
conduct and the alleged violation.” Id. (citing Peatross, 818 F.3d at 242).
The “causal connection” in Harris and Peatross was much different from what

Plaintiffs allege here. In both of those cases, the supervisor at issue had knowledge
of specific prior instances of misconduct by a subordinate, the subordinate again took
that same or similar action, and a constitutional violation ensued. See id. (“In
particular, Plaintiff alleges that Erdos was on notice of the need to provide adequate
medical care to inmates sprayed with chemical spray … failed to supervise and train
employees charged with doing so … [and] was on notice that [the Defendant Officer]

had used excessive force against inmates on multiple occasions.”); Peatross, 818 F.3d
at 243 (finding a supervisory liability claim was plausible when the supervisor was
aware of fifty-four officer shootings in five years, that there was a “dire need” to
review police operations, and the supervisor both did nothing and gave officers a
“green light” to violate citizens’ civil rights). Here, by contrast, the requisite
connection is both much more attenuated and not plausibly alleged. Namely, Hollis
and Pascol fail to allege that the Warden was aware of any prior occasion where

Officers Faye or Dalton failed to prevent or encouraged inmates to stab or attack
others, failed to search inmates prior to recreational time, or were impermissibly slow
to respond to inmate violence, let alone that the Warden, by “execution of his job
function[,]” implicitly permitted all this to occur in connection with this “specific
incident of misconduct.” Phillips, 534 F.3d at 543.
In short, there is simply no allegation that directly ties the Warden’s alleged
failure to train or failure to supervise to the specific incident here. This case is not
one, for example, where a supervisor watched fellow guards beat a prisoner, and

failed to exercise his supervisory authority to stop the attack. Nor is it even a
situation where a supervisor stood silently by and watched other guards fail to step
in to halt a prisoner-on-prisoner attack. Rather, the allegation is merely that the
Warden generally knew of a potential risk that could potentially result in harm of
some kind at some point in time, and should have done more to prevent that possible
harm. That is not enough for personal liability.

Rather, failure-to-train or failure-to-supervise claims of the nature alleged
here could give rise to, at most, official-capacity claims against the Warden, which
would in turn create liability for the governmental entity, not for the supervisor
himself.3 But that approach runs headlong into two additional problems. First,
Plaintiffs do not assert an official-capacity claim. To the contrary, they make it clear
that they are seeking to hold the Warden “individually liable.” (Compl. at ¶¶ 14, 120,
#5, 19). They likely did so because of the second problem—the Warden is a state

employee, and “neither a State nor its officials acting in their official capacities are

3 That is not to suggest that such claims would lie here. Even official-capacity failure-to-train
or failure-to-supervise claims require a showing that those failures constituted deliberate
indifference to a known risk. See, e.g., Essex v. Cty. of Livingston, 518 F. App’x 351, 355–56
(6th Cir. 2013) (comparing personal-capacity claims with official-capacity claims against a
municipality and noting the latter “is a broader claim concerning the custom or policy of a
municipality, and thus would implicate the conduct of a defendant supervisor insofar as he
acted with deliberate indifference in his official capacity as policymaker” (citations omitted)).
As discussed above, Plaintiffs are not making (and cannot make) official-capacity claims here,
though, so the Court need not consider whether the Plaintiffs could sufficiently plead
deliberate indifference.
‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). In
short, Count VI is fatally flawed, whether considered as a personal-capacity claim or
as an official-capacity claim.

As neither Count I nor Count VI set forth a viable § 1983 claim against the
Warden, discussion of qualified immunity is unnecessary. Therefore, the Court
GRANTS Defendants’ Motion on this point and DISMISSES the claims against the
Warden in Count I and Count VI WITH PREJUDICE.
C. Hollis And Pascol’s Motion For Leave To Amend Is Granted.

While the Defendants’ Motion was pending, on January 15, 2020, Hollis and
Pascol filed a Motion for Leave to Amend their Complaint, (Pls.’ Mot., Doc. 19, #122),
which the Defendants opposed. (Defs.’ Resp. in Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”),
Doc. 21, #167). Hollis and Pascol argue Federal Rule of Civil Procedure 15(a)(2)
provides that courts “should freely give leave” to amend pleadings, and because there
has been no undue delay or bad faith on their part, nor would amendment be futile,
leave is appropriate in this instance. (Pls.’ Mot. at #123–25).

Defendants advance a number of arguments in opposition, including that the
motion should be denied because the Complaint was untimely (discussed above) and
that the failure to attach the proposed amended complaint is fatal. (Defs.’ Opp’n at
#167–69). They further argue that adding defendants, as opposed to merely
substituting mistaken parties, is barred by the statute of limitations. (Id. at #169–
70). In reply, Hollis and Pascol argue that they described the proposed amended

complaint with enough particularity, and that regardless, they are not trying to
amend the claims or add facts but merely seeking “to add new parties who have
received satisfactory notice.” (Pls.’ Reply to Defs.’ Opp’n, Doc. 22, #173).
A district court has broad authority to decide whether or not to grant a party

leave to amend their pleadings. See Zenith Radio Corp. v. Hazeltine Research, 401
U.S. 321, 330 (1971) (“It is settled that the grant of leave to amend the pleadings
pursuant to Rule 15(a) is within the discretion of the trial court.”); Foman v. Davis,
371 U.S. 178, 187 (1971) (opining that an “outright refusal to grant the leave without
any justifiable reason” would likely constitute an abuse of discretion).
The issue here, it seems, is futility, which, in the context of the parties’

arguments, turns on whether adding new defendants is timely (and permitted), or
untimely (which would require further analysis). But on that front, with no
information before this Court as to when any tolling associated with the grievance
process ended, or whether there may be other forms of tolling available, the Court is
unable to say when the statute of limitations ran (or, perhaps, will run). Accordingly,
the Court cannot be certain that amending the Complaint would be futile on
timeliness grounds. That being said, it is certainly at least possible that the statute

of limitations has in fact now run, meaning any attempt to add new defendants would
require analyzing whether those additions relate back to the timely Complaint.
Wholly lacking information about any tolling that may have occurred, it is not
appropriate for this Court to speculate as to the outcome on these various issues, and
thus not appropriate to deny Hollis and Pascol’s Motion on those grounds.
Accordingly, the Court grants Hollis and Pascol leave to amend their
Complaint to identify John Doe defendants, but in doing so, makes two points. First,
because the Court has yet to see the Amended Complaint, the Court makes no ruling
on whether that filing will be timely as to any new defendants identified. Second, and
relatedly, the Court advises Hollis and Pascol to be mindful of the timing issues
outlined above, and encourages them to consider, and address through appropriate
allegations, the relevant statute of limitations issues before filing any Amended
Complaint. That being said, the Court GRANTS Plaintiffs’ Motion for Leave to File
an Amended Complaint, in which they may identify parties currently named as John
Doe defendants. Any such Amended Complaint shall be filed within fourteen days
from the entry of this Order.

CONCLUSION
Based on the above, the Court DENIES Defendants’ Motion for
Judgment on the Pleadings (Doc. 12) as it pertains to the statute of limitations issue,
but GRANTS the Motion as it pertains to the Warden, who is DISMISSED from this
action WITH PREJUDICE. Further, the Court GRANTS Plaintiffs’ Motion for
Leave to File an Amended Complaint (Doc. 19) and instructs them to do so within
fourteen days from the entry of this Order.

SO ORDERED.
May 12, 2020 :
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375502. Public record. Not legal advice.