Pugh v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SHAMIEKE PUGH, et al.,

Plaintiffs,

Case No. 1:19-cv-245

v. JUDGE DOUGLAS R. COLE

RONALD ERDOS, et al.,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Defendants’ Motion for Judgment on

the Pleadings (Doc. 11) and Plaintiffs’ Motion for Leave to File an Amended

Complaint (Doc. 19). For the following reasons, the Court GRANTS Defendants’

Motion and GRANTS Plaintiffs’ Motion.

BACKGROUND

For present purposes, the Court accepts as true the facts set forth in Plaintiffs’

Complaint. (See Compl., Doc. 1, #1–291). Plaintiff Shamieke D. Pugh (“Pugh”) was

formerly incarcerated at Southern Ohio Correctional Facility (“SOCF”) at all times

relevant to this matter, but was released on December 27, 2018. At the time this suit

was filed, he resided in Delaware County, Ohio. (Id. at ¶ 5, #3–4). Plaintiff Maurice

D. Lee (“Lee”) was also housed at SOCF during the relevant time period. He is still

incarcerated, but now at Madison Correctional Institution. (Id. at ¶ 6, #4).

1 Refers to PageID Number.

A. The June 4, 2017 Stabbing.

Pugh and Lee’s suit, at least as far as their joint claims, stems from an alleged

stabbing that occurred while they were both incarcerated at SOCF. On June 4, 2017,

Pugh and Lee were permitted to leave their respective cells for recreational time. (Id.

at ¶¶ 15–16, #5). Before inmates are permitted out of their cells at SOCF, however,

they are strip searched by corrections officers, which is the “normal procedure” at the

facility. (Id. at ¶¶ 16–17, #5–6). Consistent with that policy, on June 4th, Pugh and

Lee were strip-searched, individually walked out of their respective cells, and

handcuffed to a table with two other inmates. (Id. at ¶¶ 18–19, #6). Pugh and Lee

assert that all four men, all of whom are African American, were strip searched prior

to being seated together. (Id. at ¶ 22). Being handcuffed to the table provided Pugh

and Lee only a few inches of mobility, but it was enough room to play the card game

Spades. (Id. at ¶¶ 20–21).

While playing cards, Pugh and Lee observed Defendant Officers Faye (“Officer

Faye”) and Dalton (“Officer Dalton”) talking to another inmate, Gregory Reinke

(“Reinke”), who was still in his cell. (Id. at ¶¶ 23–24). Pugh and Lee allege all three

of them are “Caucasian” and that Reinke is “a known white supremacist and a

member of the Aryan Brotherhood gang.” (Id. at ¶ 25, #7). Officers Faye and Dalton

subsequently removed Reinke from his cell and shackled him to the table next to the

four men, but allegedly without first strip searching him. (Id. at ¶¶ 26–27). Pugh and

Lee further allege the Officers either gave Reinke a key or that he otherwise had a

device that would eventually enable him to release his restraints. (Id. at ¶ 27).

After about twenty or thirty minutes, “Reinke unlocked his handcuffs[,]”

“pulled an 8-inch blade out of his sock[,]” and proceeded to stab Pugh, Lee, and one of

the other men at their table. (Id. at ¶¶ 30–31). Pugh purports that he was stabbed

“at least ten times” and Lee claims he was stabbed “at least twice.” (Id. at ¶¶ 34–35,

#8). The two further allege that Officers Dalton and Faye stood “ten feet away behind

a locked door,” “did not immediately respond,” and “laughed.” (Id. at ¶¶ 36–38). One

of the inmates was eventually able to free himself from his handcuffs and tackle

Reinke, at which point the Officers intervened, pepper-spraying that inmate but not

Reinke, while the other inmates “were bleeding out.” (Id. at ¶¶ 40–44).

Pugh and Lee allege that for “the next ten to fifteen minutes” Officers Faye

and Dalton provided no first aid, but instead “stood by and watched.” (Id. at ¶ 45).

They also allege that Defendant Sergeant John Doe was present, but similarly did

not provide any first aid or instruct others to do so. (Id. at ¶ 46, #9). In fact, they

allege that Sergeant John Doe “attempted to prevent and deny … medical attention”

and that the three prison officials said to each other “‘we should just let them die.’”

(Id. at ¶¶ 47–48). Nurses arrived “at least ten minutes later” and administered first

aid. (Id. at ¶ 49). Pugh was treated outside the prison at The Ohio State University

hospital; Lee was also hospitalized, but it is unclear where. (Id. at ¶¶ 50–51). After

his release from the hospital, Pugh requested a transfer from SOCF, which was

denied. (Id. at ¶ 52).

B. Pugh’s June 2018 Incident In The Infirmary.

Pugh separately alleges that in June 2018, he began experiencing chest pain

and constipation, so he sought treatment from Defendant John Doe Nurses (“John

Doe Nurses”) at SOCF. (Compl. at ¶¶ 60–61, #10–11). After allegedly ignoring his

requests, one of the John Doe Nurses took Pugh’s blood pressure, conducted an EKG,

and determined that “everything seemed normal and that he was fine.” (Id. at ¶¶ 62–

64, #11). Pugh reiterated his concerns, and alleges the John Doe Nurses accused of

him of “faking.” (Id. at ¶ 66). While he was seeking treatment, there were several

corrections officers, the Defendant John Doe Corrections Officers (“John Doe

Officers”), with Pugh and the John Doe Nurses. (Id. at ¶ 67). Pugh alleges that the

John Doe Nurses conspired with the John Doe Officers and left the room, which

afforded those officers the opportunity to assault Pugh, who was still handcuffed and

shackled. (Id. at ¶¶ 68–72). After the assault, the John Doe Officers warned Pugh to

not “fall out[,]” and left. (Id. at ¶¶ 73–74, #11–12). Pugh requested, but was denied,

medical treatment for new injuries he allegedly suffered during that assault. (Id. at

¶¶ 74–75, #12). He was released from SOCF on December 27, 2018. (Id. at ¶ 76).

C. Pugh And Lee’s Complaint.

Pugh and Lee filed suit on April 3, 2019, against Officers Faye and Dalton,

Sergeant John Doe, SOCF Warden Ronald Erdos (“Warden”), the John Doe Nurses,

and the John Doe Officers. Together, Pugh and Lee assert six counts, all of which

arise under 42 U.S.C. § 1983. Individually, Pugh asserts five more counts, all also

arising under 42 U.S.C. § 1983. (The Pugh-only claims relate to the alleged incident

at the infirmary.). Only two of the eleven claims, though, Count I and Count XI—both

of which are asserted jointly by Pugh and Lee—are of particular relevance 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 XI) or in part (Count I), against the

Warden in his personal capacity.

In terms of these claims against the Warden, Pugh and Lee 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

“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 ¶¶ 54–57,

#9–10). They allege that Reinke “attempted to stab inmates on at least two other

occasions prior to” this incident. (Id. at ¶ 57, #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 Sergeant John

Doe and Officers Dalton and Faye. (Id. at ¶ 58).

Based on these and other allegations, in Count I of the Complaint, Pugh and

Lee allege that three Defendants—Faye, Dalton, and the Warden—violated their

Eighth Amendment rights by failing to protect them from Reinke’s attack. (Id. at

¶¶ 78–94, #12–14). 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

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 risk Reinke

presented, but that the Warden was deliberately indifferent to those risks. (See

Compl. at ¶ 91, #14).

In Count XI, which is labeled “Supervisory Individual Liability” and is directed

solely at the Warden, Pugh and Lee allege that the Warden “was responsible for the

supervision, discipline, and control of all Southern Ohio Correctional Facility

corrections officers,” and that he “at least implicitly approved, authorized, or

acquiesced in his/her [sic] subordinates’ misconduct.” (Id. at ¶ 184, #27). 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 ¶ 187). 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. 11, #70–77). While the Defendants’ Motion was

pending, Pugh and Lee filed a Motion for Leave to Amend their Complaint (Pls.’ Mot.

For Leave to Am. Compl. (“Pls.’ Mot.”), Doc. 19, #119–22). Since that time, the parties

have moved forward with discovery.

A. Motion For Judgment On The Pleadings.

Defendants’ Motion argues that Pugh and Lee have failed to state viable

personal-capacity claims under 42 U.S.C. § 1983 against the Warden (either under

Count I or Count XI) because there is no “respondent [sic] superior” liability under

that statute. (Defs.’ Mot. at #72). Pugh and Lee disagree, arguing their claims are

viable because the Warden “‘approved or knowingly acquiesced in the

unconstitutional conduct of the offending subordinate[s].’” (Pls.’ Resp. in Opp’n to

Defs.’ Mot. (“Pls.’ Opp’n”), Doc. 13, #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 proclivity for violence and stabbing inmates, based on

Reinke’s prior conduct. (Id. at #88).

B. Motion For Leave To File Amended Complaint.

On January 15, 2020, Pugh and Lee field a Motion for Leave to Amend their

Complaint. (Pls.’ Mot. for Leave to Am. Compl. (“Pls.’ Mot”), Doc. 19, #119–22). 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. (Id. at #119). The Motion suggests that the

sole purpose of the proposed amendment was to identify some of the John Doe

defendants. (See id. at #122).

Defendants objected to this Motion on two grounds. First, they argued that

Pugh and Lee were required to, but did not, attach to their Motion the proposed

amended complaint. (Defs.’ Resp. in Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”), Doc. 21, #164–

67). Second, they claimed that it would be futile to seek to add new defendants in

place of the John Doe defendants, as the time to amend their complaint in that

fashion has passed, i.e., any amendment is untimely. (See id. at #166–67). Their

argument does not appear to be addressed specifically at the alleged June 4, 2017

stabbing, but that is likely the case, for reasons discussed below. In response, Pugh

and Lee 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, Doc. 22, #169–71).

The current procedural posture leaves the Court at somewhat of a

disadvantage. Defendants have moved for a judgment on the pleadings, but Pugh and

Lee have filed a motion for leave to amend their Complaint. Given the lack of an

actual proposed amended complaint, though, the Court can only guess at the

substance of that proposed pleading. The Court will take Pugh and Lee at their word

and assumes that the proposed amendments relating to the June 4, 2017 stabbing

would go only to identifying named defendants to replace the John Doe defendants,

and would not change the substance of those claims. Regardless, any such

amendment would not impact the two arguments that Defendants advance in their

Motion. 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. The Warden Is Entitled To Judgment On The Pleadings.

The Warden is entitled to judgment on the pleadings as it relates to Counts I

and XI of the Complaint, and will be dismissed from this action with prejudice. “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). Pugh and Lee 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 can be held 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. See

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 mere failure to act 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.”).

Relatedly, a failure to protect claim requires Pugh and Lee 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, Pugh and Lee allege two personal-capacity § 1983 claims

against the Warden, asserting, at various points that:

83. … Defendant Warden … knew that Gregory Reinke was

dangerous and had stabbed inmates before, yet still permitted him to be

in general population during recreational time.

91. 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 despite knowledge of several previous instances of

stabbing and possession of shanks, violated Plaintiffs’ constitutionally

protected right to be free from bodily harm.

…

183. At all times relevant to this complaint, 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.

…

187. 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.

188. As a result of Defendant Warden’s actions and inactions, he

exhibited deliberate indifference to Plaintiffs’ constitutional rights in

violation of 42 U.S.C. § 1983 and his rights under the Eighth and

Fourteenth Amendments to the United States Constitution.

(Compl., ¶¶ 83, 91, 183, 187–88, #13–14, 26–27).

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., id. at ¶ 183, #26–27). But the Complaint fails

to allege any facts that plausibly support that conclusion, which is not enough.

Twombly, 550 U.S. at 570.

That is, even assuming Reinke posed a “substantial risk of serious harm” to

Pugh and Lee, 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 ¶ 83,

#13). That allegation alone is insufficient to state a plausible claim against the

Warden for failing to protect Pugh and Lee in this particular instance. Pugh and Lee

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 Pugh and Lee 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 XI) 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 already noted, there are insufficient allegations on that front here.

Pugh and Lee 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 #84–88). 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, Pugh

and Lee 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.2 But that approach runs headlong into two additional problems. First,

2 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,

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

‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). In

short, Count XI is fatally flawed, whether considered as a personal-capacity claim or

as an official-capacity claim.

As neither Count I nor Count XI set forth viable § 1983 claims 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 XI WITH PREJUDICE.

C. Pugh And Lee’s Motion To Amend Is Granted.

While the Defendants’ Motion was pending, on January 15, 2020, Pugh and

Lee filed a Motion for Leave to Amend their Complaint (Pls.’ Mot. at #119–22), which

the Defendants opposed. (See Defs.’ Resp. in Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”), Doc.

21, #164–673). Pugh and Lee argue that because Federal Rule of Civil Procedure

15(a)(2) provides that courts “should freely give leave” to amend pleadings, and

though, so the Court need not consider whether the Plaintiffs could sufficiently plead

deliberate indifference.

3 The Court does note that in their opposition, Defendants claim that “Hollis and Pascol” are

“attempting to identify and add parties” or are trying to “avoid the obvious statute of

limitations problem.” The Court is nearly certain Defendants are referring to plaintiffs in

another case also before this Court arising out of the same stabbing incident. (See Defs.’ Opp’n

at #166; see also Hollis et al. v. Erdos, et al., No. 1:19-cv-436 (S.D. Ohio) (Cole, J.)). Pugh and

Lee’s initial Complaint in this action was filed within the two-year statutory period, so the

“obvious statute of limitations problem” is not as obvious to the Court as it is to the

Defendants. Regardless, the Court addresses Pugh and Lee’s Motion in this Order.

because there has been no undue delay, or bad faith on their part, nor would

amendment be futile, that leave is appropriate. (See Pls.’ Mot. at #120–22).

Defendants make a number of arguments in response. They argue the motion

should be denied because the failure to attach the proposed amended complaint is

fatal. (Defs.’ Opp’n at #165–66). They further contend that adding defendants at this

point, as opposed to merely substituting mistaken parties, is barred by the applicable

statute of limitations. (See id. at #166–67). By way of reply, Pugh and Lee 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 are merely

seeking to “add new parties who have received satisfactory notice.” (Pls.’ Reply to

Defs.’ Opp’n, Doc. 22, #170).

Deciding Pugh and Lee’s Motion requires a brief discussion about the statute

of limitations applicable to their claims. 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, the point 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)).

On the facts here, there is little question that the day of the alleged attack,

June 4, 2017, is the day Pugh and Lee’s combined claims accrued. As for Pugh’s

individual claims, they similarly accrued the day of the alleged assault in the

infirmary, some unspecified day in June of 2018.4

While the Defendants’ argument, that adding defendants at this point is time-

barred, is straightforward enough, there are two issues they do not address:

4 There are several issues with the Defendants’ argument on this point. First, they do not identify the

appropriate statute of limitations for causes of action under §1983 in Ohio. Second, they do not

distinguish between the two sets of claims here: Pugh and Lee levied several combined claims (against,

among others, Sergeant John Doe) and Pugh made several more individual claims (against the John

Doe Nurses and John Doe Officers). They occurred at different times, and thus, the day the statute of

limitations will (or did) expire, is necessarily different. Defendants lump the combined and individual

claims together in arguing amending the Complaint is futile.

administrative exhaustion and tolling. All 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). Because of this

requirement, the Sixth Circuit has held that the statute of limitations applicable to a

prisoner’s civil rights claim is tolled while the plaintiff exhausts their 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).

In making their statute of limitations argument, though, Defendants say nary

a word about either exhaustion or tolling. (See Defs.’ Resp. in Opp’n to Pls.’ Mot.

(“Defs.’ Opp’n”), Doc 21, #166). Instead, they simply say that Pugh and Lee “make no

attempt to explain how these yet-to-be-named Defendants can avoid the obvious

statute-of-limitations problem.” (Id.). In reply, Pugh and Lee choose not to address

the statute of limitations issue at all. Instead, they argue that the Defendants had

the means to identify Sergeant John Doe, the John Doe Nurses, and the John Doe

Officers well-before this point and because of that fact, notice should be imputed. (See

Pls.’ Reply to Defs.’ Opp’n, Doc. 22, #170–71).

Both approaches miss the mark, albeit in different ways. As for Defendants,

the “obvious” statute of limitations problem is a little more nuanced than they

acknowledge. Defendants do not assert that Pugh and Lee failed to grieve their claims

while at SOCF, nor do Defendants press a failure-to-exhaust defense, as they

presumably would if Pugh and Lee had not pursued their administrative remedies,

like the PLRA requires. For their part, though, Pugh and Lee did not explicitly plead

that they engaged in any administrative grievance procedure at SOCF that would

entitle them to tolling, nor do they raise this point in their Reply.

This leaves the Court befuddled. For Pugh and Lee’s joint claims (Counts I

through V and XI), the Court has no information as to what tolling, if any, may have

arisen as a result of the prison’s grievance process. Accordingly, the Court is unable

to say when the statute of limitations ran (or, perhaps, will run). As things currently

stand, then, the Court cannot determine whether Pugh and Lee’s amended complaint

(when accounting for tolling, if any) would be untimely at all. (Of course, even if it is,

the Court would separately need to determine whether adding new defendants may

relate back to the timely Complaint.) Concerned that some tolling may be appropriate

(given Defendants’ failure to allege an exhaustion defense), but lacking information

about the magnitude of that tolling, the Court declines to rely on timeliness concerns

as a basis to deny Pugh and Lee’s Motion.

As for Pugh’s individual claims (Counts VI through X), it is not clear, based on

the Complaint, exactly when they accrued. The Complaint merely says the infirmary

attack occurred in June 2018. (Compl. at ¶ 60, #10). Exactly when in June, though,

is of little moment for statute of limitations purposes. Given that there is a two-year

limitations period, the earliest that period could expire is June 1, 2020. Therefore,

denying leave to amend those claims on statute of limitations grounds would be

improper, too.

All that being said, a district court has broad authority to decide whether or

not to grant a party leave to amend their pleadings. 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.”); see also

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).

Accordingly, the Court grants Pugh and Lee leave to amend their Complaint

to identify any and all of the 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 Pugh and Lee 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 GRANTS Defendants’ Motion for Judgment on

the Pleadings (Doc. 11) 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

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