Rolling v. Cincinnati Police Dept.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CARL R. ROLLING, Case No. 1:19-cv-101

Plaintiff,

vs. Bowman, M.J.

CINCINNATI POLICE DEP’T

DISTRICT #1,

Defendant.

MEMORANDUM OF OPINION AND DECISON

This civil action is now before the Court on Defendant Cincinnati Police

Department District #1’s motion for judgment on the pleadings (Doc. 12) and the parties’

responsive memoranda. (Docs. 18, 19, 20). The parties have consented to the jurisdiction

of the magistrate judge for the disposition of this matter pursuant to 28. U.S.C. section

636(c). (Doc. 13)

I. Background and Facts

Plaintiff Carl R. Rolling (“Plaintiff”) filed this pro se action on February 8, 2019,

alleging that in 2017 three police officers approached him and instructed him to pour out

an open can of beer. (Doc.1). Plaintiff claimed that after he poured the beer out one of

the officers walked away to write a ticket and the other two officers proceeded to slam

him to the ground and kick him in the ribs. After giving Plaintiff a ticket, the officers

allegedly left him lying on the ground and Plaintiff eventually went to UC Emergency to

be treated. Plaintiff claimed that an M. Campbell, who was on a lunch break, witnessed

all these events. Id. In an amended complaint filed on August 14, 2019, Plaintiff further

alleged that the police officers mocked him as they walked away and specified that the

events in question took place on February 2, 2017 around 12:30 P.M. (Doc.4). This

complaint also named “3 Cincinnati Police Officers” as the defendant in the case caption

rather than the originally named Defendant Cincinnati Police Department District #1. Id.

On December 9, 2019, the Cincinnati Police Department District #1 (“Defendant”)

filed a motion for judgment. (Doc.12). Plaintiff filed a memorandum in opposition to

Defendant’s motion for judgment on the pleadings on January 15, 2020, claiming that

there are cameras on the corner of Findlay and Linn streets and that he was told the

police department allegedly could not find the film of his encounter with the police officers.

(Doc.18). Plaintiff again referred to the Defendant as “3 Police Officers” rather than the

originally named Defendant. Id. In response, Defendant again asserted that Plaintiff did

not allege enough facts in his Complaint or responses to support his claim against the

City and further argued that the amended complaint filed on August 14, 2019, is not valid

because of the statute of limitations. (Doc.19). On March 9, 2020, Plaintiff filed a

Supplemental Memorandum opposing the Defendant’s motion, again stating that he has

sued the three individual police officers, not the Police Department. (Doc.20).

II. Analysis

A. Standard of Review

To survive a motion for judgment on the pleadings, a complaint must “state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). The Court must construe the complaint in the light most favorable to the plaintiff

and accept all well-pleaded material allegations in the complaint as true. Roth Steel

Products v. Sharon Steel Corporation, 705 F.2d 134, 155 (6th Cir. 1983). However, the

court need not accept as true legal conclusions or unwarranted factual inferences. Lewis

v. ACB Business Seru., Inc., 135 F.3d 389, 405 (6th Cir. 1988); Morgan v. Church’s Fried

Chicken, 829 F.2d 10, 12 (6th Cir. 1987). It is not enough that the complaint contains “an

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

662, 678 (2009). Conclusory statements which recite a cause of action are not sufficient.

Id. The complaint must contain more than allegations the defendant may have possibly

acted unlawfully. Even allegations that are consistent with a defendant's liability are

insufficient. Id. Instead, the complaint must “contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Id. See also Corie v. Alcoa

Wheel & Forget Products, 577 F.3d 625 (6th Cir. 2009). If it is not plausible that the factual

allegations will lead to the requested relief, the defendant is entitled to judgment as a

matter of law.

B. Defendant’s Motion is Well-Taken

Defendant argues that judgment on the pleadings is warranted because Plaintiff

has not alleged any policy or practice by the City that would create civil rights liability

under 42 U.S.C. § 1983. (Doc.12). A municipality cannot be found liable for the

unconstitutional acts of its employees. Monell v. New York Dep’t of Social Services, 436

U.S. 658 (1978). For a municipality to be held liable for the unconstitutional actions of its

employees, the plaintiff must show a “‘direct causal link’ between a municipality's custom

or policy and the alleged constitutional violation.” Williams v. Warren County, Case No.

1:08-cv-899, 2011 U.S. Dist. LEXIS 54234 at 19 (S.D. Ohio Mar. 4, 2011). In this case,

Plaintiff has alleged no facts in any of his pleadings that would indicate the Defendant has

a custom or policy of excessive force that directly caused the police officers’ actions and

therefore the Defendant cannot be held liable for its employees’ actions. Accordingly,

Plaintiff has failed to allege sufficient facts to support a claim of unconstitutional policy or

practice of excessive force. Therefore, Defendant is entitled to judgment a matter of law

with respect to Plaintiff’s section 1983 claims.

Defendant further argues that as a police department it is not a legal entity with the

capacity to be sued. (Doc.12). A police department is “a mere arm of the City” and “not

its own entity” and is therefore “not capable of being sued.” Hale v. Vance, 267 F.Supp.2d

725, 737 (S.D. Ohio 2003). See also Rhodes v. McDaniel, 945 F.2d 117, 12 (6th Cir. 1991)

(Police Departments are part of a larger political subdivision and cannot be sued). Since

the Defendant in this case is a police department, it is not an entity capable of being sued

and therefore not a proper party to this suit. 1

For these reasons, Defendant’s motion for judgment on pleadings is well-taken.

III. Conclusion

It is therefore ORDERED that Defendants’ motion for judgment on the pleadings

(Doc. 12) is GRANTED and this case is CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

1 Additionally, in his supplemental memorandum in opposition to Defendant’s motion Plaintiff claims that he

is not suing the Cincinnati Police Department District #1, but rather the three individual police officers that

allegedly used excessive force against him. (Doc. 20). However, Defendant argues that these police officers

were not named in the original Complaint or properly served. Defendant further contends that amendment

of pleadings at this juncture would be futile because the claims would be barred by the two-year statute of

limitations since the amendment will not relate back to the filing of the complaint under Federal Rule of Civil

Procedure Rule 15(c). See Gamblin v. City of Akron, N.D. Ohio No. 5:11 CV 927, 2013 U.S. Dist. LEXIS

167224, at *19-20 (Nov. 25, 2013) (citing Brown v. Cuyahoga County, Ohio, 517 Fed. Appx. 431, 433-34

(6th Cir. 2013); Smith v. City of Akron, 476 F.App’x 67, 69 (6th Cir.2012)). The alleged use of force occurred

on February 2, 2017. The Complaint was filed on February 1, 2019 and entered on February 8, 2019. Doc.

1. Without leave, Plaintiff filed an amended pleading on August 14, 2019 listing “3 Cincinnati Police Officers”

in the case caption. Doc. 19. No service was attempted on any individual officers. As such, Defendant

argues that even if Plaintiff had obtained leave to amend his pleadings, had properly named the three

officers and served them, August 14 was well beyond the statute of limitations which expired the day after

the Complaint was filed. The undersigned agrees.