# Pugh v. Erdos

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

URL: https://www.frixlaw.com/law-library/cases/10375639

## Case

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

## Citator (automated)

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## How later opinions describe it (automated extraction)

- 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’…

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375639. Public record. Not legal advice.