Atkinson v. Muskingum County Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ERIC R. ATKINSON,

Plaintiff,

Civil Action 2:20-cv-1642

v. Judge James L. Graham

Magistrate Judge Jolson

MUSKINGUM COUNTY

COMMISSIONERS, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment. (Doc. 18).

For the reasons that follow, the Undersigned RECOMMENDS Defendants’ Motion be

GRANTED. Additionally, given this recommendation, Defendants’ Motion to Strike Reply to

Response (Doc. 27), is DENIED as moot.

I. BACKGROUND

Plaintiff Eric Atkinson is a pro se prisoner currently incarcerated at Noble Correctional

Institution. (Doc. 1 at ¶ 1). Plaintiff has sued the Muskingum County Board of Commissioners

(“the Board”) and the Muskingum County Sheriff’s Department (“MCSO”), as well as individuals:

Sheriff Matt Lutz, Deputy Sergeant Ryan Williams, Deputy Ryan Dodson, Deputy Michael Lynn,

Deputy Jeremy Archer, and K-9 Deputy Narco (“Defendant Deputies”). (Id. at 2–3).

The following allegations are taken from Plaintiff’s Complaint. On October 29, 2017,

members of the MCSO arrived at Plaintiff’s home because of a complaint that he assaulted the

mother of his children. (Id., ¶ 7). Deputies spoke to Plaintiff through a kitchen window, and

Plaintiff indicated that they could not come inside without a warrant. (Id., ¶¶ 7–8).

Shortly thereafter, Defendant Williams allegedly raised the screen in the window and,

along with Defendant Dodson, “dove through the kitchen window” landing on top of Plaintiff and

his sister, Miranda Rittenhouse. (Id., ¶ 10). Plaintiff was knocked unconscious from his head

hitting the floor, and Defendants Williams and Dodson “began to punch on the Plaintiff with closed

fist[s].” (Id., ¶ 11). After being handcuffed, another deputy on the scene, Defendant Archer,

“punched the Plaintiff twice more with a closed fist” causing Plaintiff to fall “back to the floor.”

(Id., ¶ 12). Defendant Archer “also allowed his K-9 partner Defendant Narco to aggressively put

its face within inches of [] plaintiff, as if Defendant Archer was going to allow Defendant Narco

to bite Plaintiff with no provocation.” (Id., ¶ 13). While Plaintiff was unconscious, Defendants

Williams, Archer, Dodson, and Lynn “punched and kicked Plaintiff repeatedly.” (Id., ¶ 15).

Deputies then dragged Plaintiff outside where he “began coming to and started screaming for

help.” (Id., ¶ 17). He was subsequently taken to the hospital where he was treated for a number

of injuries to his head and face. (Id., ¶¶ 18–19). After leaving the hospital, Plaintiff was taken to

Muskingum County Jail “where on several occasions [he] complained of damage[] to his left eye

and right ear and was told by the jail staff that he would be fine.” (Id., ¶ 20).

After Defendants filed the instant Motion for Summary Judgment (Doc. 18), Plaintiff filed

a Motion to Dismiss Defendants’ Motion (Doc. 19), which the Court treated as Plaintiff’s response.

(Doc. 20). Now that Defendants have filed their reply (Doc. 21), the Motion is fully briefed and

ripe for resolution.

II. STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking

summary judgment bears the initial “responsibility of informing the district court of the basis for

its motion, and identifying those portions” of the record that demonstrate “the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts

to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The evidence of the nonmovant is to

be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. (citing Adickes

v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine issue of material fact exists if a

reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see

also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (defining

“genuine” as more than “some metaphysical doubt as to the material facts”). Consequently, the

central issue is “whether the evidence presents a sufficient disagreement to require submission to

a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477

U.S. at 251–52.

III. DISCUSSION

Defendants have moved for summary judgment on all of Plaintiff’s claims. (See generally

Doc. 18). The complaint, although not a model of clarity, asserts federal claims for excessive

force, deliberate medical indifference, municipal and supervisory liability, conspiracy as well as

several claims under state law. (See generally Doc. 1). The Court addresses each in turn. First,

however, the Undersigned must review Plaintiff’s previously filed action in this Court.

A. Plaintiff’s Previous Suit

This is a refiled action. On June 16, 2019, Plaintiff filed a similar suit in this Court,

asserting generally the same claims, against the same Defendants. See Atkinson v. Muskingum

Cty. Comm’rs, 2:19-cv-2565-JLG-KAJ (S.D. Ohio). There, the Court dismissed with prejudice

Plaintiff’s third cause of action against the individual defendants for entering his residence without

a warrant or probable cause in violation of the Fourth Amendment. Atkinson v. Muskingum Cty.

Comm’rs, No. 2:19-cv-2562, 2020 WL 886217, at *1 (S.D. Ohio Feb. 24, 2020). Shortly

thereafter, the Court dismissed without prejudice the remaining two causes of action in Plaintiff’s

complaint, finding that he had not truthfully represented his income and assets on his application

to proceed without prepayment of fees. Id.

In his response in the instant case, Plaintiff seems to re-assert his cause of action for illegal

search and seizure. (See generally Doc. 19). Specifically, he asserts that “Defendants ha[ve] not

demonstrated that there were exigent circumstances at the time that the deputies . . . cross[ed] the

threshold of Plaintiff’s home.” (Id. at 13). To the extent Plaintiff is attempting to reassert this

claim here, he is barred from doing so. In his previous case, the Court determined that “[a] finding

of illegal entry would also compromise the validity of [P]laintiff’s felonious assault and domestic

violence convictions to the extent that they were based on evidence obtained as a result of the

illegal entry.” Atkinson, 2020 WL 886217, at *1. Accordingly, this claim was dismissed with

prejudice. Id.

As a result of this disposition, and to the extent Plaintiff is attempting to reassert his claim

for illegal search and seizure in the instant case, he is barred from doing so. Accordingly, the

Undersigned RECOMMENDS Defendants be GRANTED summary judgement on any such

duplicitous claim in Plaintiff’s complaint.

B. Excessive Force

Turning to his other claims, Plaintiff’s excessive force claim alleges that he was assaulted

by the individual defendants while he was being placed under arrest. (Doc. 1 at ¶ 25). Defendants

argue that the Supreme Court’s decision in Heck v. Humphrey bars the claim. (Doc. 18 at 7 (citing

512 U.S. 477, 490 (1994)).

In Heck, the Supreme Court held that a prisoner may not bring a § 1983 action “where

success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or

sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (explaining the import of Heck and its

progeny). Here, Plaintiff pled guilty and was convicted of resisting arrest. See State v. Atkinson,

No. CT2018-0015, 2018 WL 5279078, at *1 (Ohio Ct. App. Oct. 22, 2018). So this Court must

now consider the relationship of Plaintiff’s conviction to his constitutional claim for excessive

force.

“There are two circumstances in which an excessive-force claim may conflict with a

conviction: (1) when the criminal provision makes the lack of excessive force an element of the

offense; or (2) when excessive force is an affirmative defense to the crime. Colson v. City of Alcoa,

458 F. Supp. 3d. 887, 910 (E.D. Tenn. 2020) (citing Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir.

2010)). Under Ohio law, “although excessive force is not an element of resisting arrest, it is an

affirmative defense to a charge of resisting arrest.” Hayward v. Cleveland Clinic Found., 759 F.

3d 601, 614 (6th Cir. 2014). Accordingly, a guilty plea and resultant conviction of such a charge

necessarily includes a finding that the officer did not use excessive force. Id. The analysis does

not end there, however. “For Heck to bar a § 1983 claim, success on the claim must necessarily

imply the invalidity of the conviction––both the § 1983 claim and the conviction must arise out of

the same events.” Parvin v. Campbell, 641 F. App’x 446, 450 (6th Cir. 2016). Conversely, when

a plaintiff alleges excessive force occurred after he was handcuffed and brought under control, the

excessive force is not “inextricably intertwined” with the resistance to arrest and is therefore not

barred by Heck. Id. So timing matters.

While Plaintiff offers a few conclusory allegations in his complaint that the alleged

excessive force occurred after he was placed under arrest (see Doc. 1 at ¶¶ 12, 15), this case has

moved beyond the pleadings. And Plaintiff’s deposition testimony, as well as other evidence in

the record, directly contradicts his earlier allegation. To start, multiple times in his sworn

deposition testimony, Plaintiff asserts that he was the victim of an “unprovoked attack” and that

any excessive force occurred during his arrest, not after. (Doc. 15 at 134:22–135:2, 189:7–10).

Furthermore, each of the Defendant Deputies’ statements support this version of events––that any

excessive force occurred before or during Plaintiff’s arrest. (See Doc. 19-1 at 3–22). For example,

Defendant Williams stated that “[a]t one point [Plaintiff] was on his stomach and I was attempting

to place him in handcuffs, but he was pulling his arms away and placing them under his body near

his waist line.” (Doc. 19-1 at 4). Similarly, Defendant Lynn stated that “after several minutes of

fighting with [Plaintiff], [Defendant] Williams was able to handcuff [Plaintiff] behind his back. I

then picked [Plaintiff] up off the ground to stand him on his feet” (Id. at 11). What is more,

Plaintiff testified that he has no “first hand knowledge” of the alleged excessive force actions, as

he was allegedly unconscious. (Doc. 15 at 132:22–135:16).

“While the Court strives to construe the [P]laintiff[’]s claims in the light most favorable to

[him], [he] unfortunately, ha[s] provided scant evidence in support of [his] claims, and very little

clarification of [his] account of the events.” Lowe v. Henson, No. 3:05-cv-275, 2007 WL 2022205,

at *5 (E.D. Tenn. July 11, 2007) (finding that the “most useful evidence” in evaluating the

plaintiffs’ Fourth Amendment claim was their own deposition testimony). Because Plaintiff has

admitted, in his sworn deposition testimony, that the basis for his excessive force claim stems from

actions taken by the Defendant Deputies during his arrest, the Court will accept this version of

events. Colson, 458 F. Supp. 3d at 911; see also U.S. ex rel. Compton v. Midwest Specialties, Inc.,

142 F.3d 296, 302–03 (6th Cir. 1998) (holding that “a party cannot avoid summary judgment”

where self-serving affidavits contradict sworn testimony).

Because Ohio law makes an officer’s excessive use of force an affirmative defense to a

charge of resisting arrest—and such a conviction necessarily includes a finding that the officer did

not use excessive force—Plaintiff’s conviction for resisting arrest forecloses his claims of

excessive force against the Defendant Deputies. Parvin, 641 F. App’x at 449. As illustrated above,

“this case does not fall within the scenario where the use-of-force occurred [] after the [arrest] . . .

[i]nstead, the alleged use-of-force is inextricably intertwined with the conduct that Plaintiff admits

was the basis for the resisting charge to which [he] pleaded guilty.” Colson, 458 F. Supp. 3d at

912; see also Parvin, 641 F. App’x at 450 (holding that, because Plaintiff’s “excessive force claim

arises out of the same conduct that led to his [resisting arrest] conviction[,]” the claim was barred

by the Heck doctrine). Accordingly, because there is no genuine dispute as to any material fact

regarding Plaintiff’s excessive force claim, the Undersigned RECOMMENDS Defendants be

GRANTED summary judgment on this claim.

C. Municipal and Supervisory Liability

Next, Plaintiff aims to “hold [MCSO and the Board] liable [] for negligent training of its

sheriff’s department deputies.” (Doc. 1 at ¶ 21). Additionally, Plaintiff alleges that Defendant

Lutz “[f]ail[ed] to properly investigate the use of force during the course of Plaintiff’s arrest[,]

[and] [f]ail[ed] to adequately supervise and discipline [his] deputies.” (Id., ¶¶ 72–74). These

claims fail for two important reasons.

To begin, in as much as Plaintiff is asserting claims against MCSO and the Board for

municipal liability under § 1983, those claims are precluded by the Heck doctrine. “If a person

has suffered no constitutional injury at the hands of the individual police officer, the fact that the

departmental regulations might have authorized the use of constitutionally excessive force is quite

beside the point.” Scott v. Clay Cty., 205 F. 3d 867, 879 (6th Cir. 2000). Given the analysis above,

finding that the Defendant Deputies are entitled to summary judgment because there was no

constitutional violation, Plaintiff’s claim against MCSO and the Board must also fail. See

DeMerrell v. City of Cheboygan, 206 F. App’x 418, 429 (6th Cir. 2006) (“[I]f the officer inflicted

no constitutional injury on a person, then it is inconceivable that the city could be liable to the

person.”).

Moreover, in regard to supervisory liability against Defendant Lutz, that claim too is

precluded by the Heck doctrine. To find supervisory liability under § 1983, “[a]t a minimum, []

plaintiff must show that a supervisory official at least implicitly authorized, approved [or]

knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Turner v.

City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005). Accordingly, if there is no unconstitutional

conduct by an offending subordinate, as in the instant case, Plaintiff cannot make the required

showing. DeMerrell, 206 F. App’x at 430.

Ultimately, the disposition of these two claims hinges on the analysis of Plaintiff’s

excessive force claim above. Because the Undersigned finds that Defendants are entitled to

summary judgment on that claim, no municipal or supervisory liability can exist. As a result, it is

RECOMMENDED that Defendants be GRANTED summary judgment on these claims as well.

D. Deliberate Medical Indifference

Next, Plaintiff alleges that MCSO and the Board failed “to provide [him with] adequate

and prompt medical assistance” in treating the alleged injuries sustained during his arrest. (Doc.

1 at ¶¶ 22, 41–42). Defendants counter these allegations on two grounds. First, they argue that

because Plaintiff has failed to exhaust his intra-prison administrative remedies prior to filing this

suit, his claim must be dismissed. (Doc. 18 at 14–15). Additionally, they assert that regardless of

Plaintiff’s failure to exhaust, his allegation of medical indifference is unsupported by the evidence.

(Id.). The Court addresses both arguments.

1. Failure to Exhaust

First, Defendants argue that Plaintiff’s medical indifference claim must be dismissed

because he failed to exhaust his administrative remedies as required by the Prison Litigation

Reform Act of 1995 ( “PLRA”). (Doc. 18 at 14–15). “Failure to exhaust administrative remedies

under the PLRA is an affirmative defense that must be proved by the defendant.” Anderson v.

Shelby Cty. Gov’t, No. 03-2650-P, 2009 WL 3241676, at *5 (W.D. Tenn. Sept. 30, 2009) (citing

Jones v. Bock, 549 U.S. 199, 212 (2007)). “Once Defendants put forth evidence of its affirmative

defense of failure to exhaust administrative remedies, Plaintiff [is] required to present ‘significant

probative evidence’ to defeat the motion for summary judgment.” Pullen v. Combs, No.

1:17CV255, 2020 WL 1451564, at *1 (S.D. Ohio Mar. 25, 2020) (quoting Napier v. Laurel Cty.,

Ky., 636 F.3d 218, 225 (6th Cir. 2011)).

The exhaustion question in this case is simple. Plaintiff admits he did not exhaust his

administrative remedies. And the record confirms this. As Defendants note, “MCSO has an

Inmate Handbook that sets forth an inmate grievance procedure and an official policy on how to

address such medical grievances.” (Doc. 18 at 15; citing Doc. 15-1 at 233–35). That policy

requires inmates to “voice any grievance in writing to the shift supervisor.” (Doc. 15-1 at 235).

In his sworn deposition testimony, Plaintiff represents that he never filed any such written

grievance. (Doc. 15 at 185:3–5, 187:1–4).

In sum, Plaintiff indisputably failed to exhaust, and Defendants are entitled to summary

judgment. See, e.g., Bridgmon v. Biery, No. 3:10-CV-02735, 2011 WL 6415530, at *3 (N.D. Ohio

Dec. 21, 2011) (granting defendant summary judgment where plaintiff admitted that he did not

attempt to utilize the institution’s grievance system).

2. Merits

While the Court need not address the merits of Plaintiff’s deliberate indifference claim

because he failed to exhaust it, it is worth noting that the record shows that Defendants were not

deliberately indifferent to his medical needs. “[D]eliberate indifference to serious medical needs

of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal citation and quotation marks

omitted). To prevail on a deliberate indifference claim, the inmate must satisfy a two-pronged test

containing both an objective and a subjective prong. Rhinehart v. Scutt, 894 F. 3d 721, 737 (6th

Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

“The objective component requires a plaintiff to prove that the alleged deprivation of

medical care was serious enough to violate the Eighth Amendment.” Rhinehart, 894 F. 3d at 737

(citing Farmer, 511 U.S. at 834). A medical need is sufficiently serious if it “‘has been diagnosed

by a physician as mandating treatment or . . . is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” Jones v. Muskegon Cty., 625 F. 3d 935, 941 (6th

Cir. 2010) (quoting Harrison v. Ash, 539 F. 3d 510, 518 (6th Cir. 2008)).

The subjective component requires a plaintiff “show that prison officials had a sufficiently

culpable state of mind.” Napier v. Madison Cty., Ky., 238 F. 3d 739, 742 (6th Cir. 2001) (quotation

marks and citation omitted). This burden is heavy. A plaintiff must show: “(1) the official being

sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the

official did in fact draw the inference, and (3) the official then disregarded that risk.” Richko v.

Wayne Cty., Mich., 819 F. 3d 907, 915 (6th Cir. 2016) (quotation marks and citations omitted).

While a plaintiff “need not show that [a defendant] acted with the specific intent to harm,” Phillips

v. Roane Cty., Tenn., 534 F. 3d 531, 540 (6th Cir. 2008), the defendant must have “recklessly

disregard[ed] th[e] risk,” Dominguez v. Corr. Med. Servs., 555 F. 3d 543, 550 (6th Cir. 2009).

Plaintiff cannot demonstrate either prong, and thus summary judgment is appropriate here.

To begin, the record shows that his injuries were not sufficiently serious. In fact, when he was

evaluated by various medical professional following his arrest and incarceration, each found his

injuries were minor or had healed. (See Doc. 19-1 at 46 (“[n]o acute traumatic injury of the facial

bones[,] [and] no skull fracture seen”); id. at 50 (“[n]o abrasion or other abnormalities seen on []

exam of the eyes”); id. at 198 (“no residual findings or permanent injury”)).

Furthermore, regardless of the alleged seriousness of Plaintiff’s medical need, his own

testimony confirms that prison officials did not deprive him of medical treatment with the required

scienter. At his deposition, Plaintiff represents that upon his admission to the Muskingum County

Jail he was evaluated by medical personnel. (Doc. 15 at 161:13–18). In fact, he testified that he

saw a physician less than two days after being arrested and saw various healthcare professionals

almost every day thereafter. (Id. at 177:18–20; 179:2–4). Furthermore, when he requested to be

seen by these healthcare professionals, those requests were responded to within the same day. (Id.

at 182:17–21). Nothing in this course of events indicates that anyone involved in treating Plaintiff

acted with a mental state “equivalent to criminal recklessness.” Rhinehart, 894 F. 3d at 737

(quoting Miller v. Calhoun Cty., 408 F. 3d 803, 819 (6th Cir. 2005) (“The plaintiff must present

enough evidence for a factfinder to evaluate the adequacy of the treatment provided and the

severity of the harm caused by the allegedly inadequate treatment.”)).

Ultimately, given both the procedural and substantive failures of Plaintiff’s medical

indifference claim, the Undersigned RECOMMENDS Defendants be GRANTED summary

judgment on this claim.

E. Conspiracy

Finally, Plaintiff alleges that the Defendant Deputies “lied on official documents and

conspired to deprive [] Plaintiff of his federally protected civil rights.” (Doc. 1 ¶ 28; see also Doc.

15 at 155:1–7 (clarifying that his conspiracy claims are against the Defendant Deputies only)). He

further alleges that “[Defendant Deputies] conspired their statements against [him] to fabricate

what they wanted it to say.” (Doc 15 at 187:15).

At the outset, this claim fails because, considering the analysis above concerning his claims

of excessive force and medical indifference, Plaintiff has failed to show a genuine issue of material

fact as to whether he was deprived of his constitutional rights. Bazzi v. City of Dearborn, 658 F.

3d 598, 603 (6th Cir. 2011) (recognizing that in order for a conspiracy to exist there must be a

“general conspiratorial objective of violating [plaintiff]’s constitutional rights”).

Furthermore, “[a]lthough circumstantial evidence may prove a conspiracy, it is well-settled

that conspiracy claims must be pled with some degree of specificity and that vague and conclusory

allegations unsupported by material facts will not be sufficient to state such a claim under § 1983.”

Marvaso v. Sanchez, 971 F. 3d 599 (6th Cir. 2020). This is exactly what is occurring here. While

plaintiff uses the word “conspiracy” several times throughout his complaint, he alleges “no facts

suggesting the existence of a ‘single plan.’” Blick v. Ann Arbor Pub. Sch. Dist., No. 19-12127,

2021 WL 351997, at *14 (E.D. Mich. Feb. 2, 2021) (quoting Jackson v. City of Highland Park,

No. 15-10678, 2015 WL 3409013, at *5 (E.D. Mich. May 27, 2015)). Simply alleging that the

“Defendants were [] in contact with each other throughout [the] investigation” is not enough. Id.

Importantly, when asked at his deposition what evidence he had of this alleged conspiracy,

Plaintiff admitted that he had none. (Doc. 15 at 155:1–7).

Accordingly, the Undersigned RECOMMENDS that the Defendant Deputies be

GRANTED summary judgment on this claim.

F. State Law Claims

In his complaint, while not abundantly clear, Plaintiff asserts several negligence claims

under Ohio Law. As the Undersigned has recommended Defendants be granted summary

judgement on all of Plaintiff federal claims, the Court need not assume jurisdiction of Plaintiff’s

state law claims. However, a brief analysis of those claims illustrates that they too fail on the

merits.

Plaintiff alleges several state law claims against MCSO and the Board for negligence in

providing medical assistance or training, as well as against the Defendant Deputies in their

individual capacity for negligent performance of their duties. (Doc. 1 at ¶¶ 38, 42). Additionally,

he alleges he was subject to the “unnecessary infliction of emotional distress” by the Defendant

Deputies. (Id. at ¶¶ 49, 54, 58, 63). Defendants contend that they are entitled to statutory immunity

against these claims. The Undersigned agrees.

First, regarding Plaintiff’s state law claims against MCSO and the Board, “a political

subdivision is not liable in damages in a civil action for injury, death, or loss to person or property

allegedly caused by any act or omission of the political subdivision or an employee of the political

subdivision in connection with a governmental or proprietary function.” Jordan v. Murphy, 145

F. App’x 513, 518 (6th Cir. 2005) (citing O.R.C. § 2744.02(A)(1)). There are however, five

exceptions to this grant of immunity, laid out in O.R.C § 2744.02(B). Pertinent to Plaintiff’s

allegations, § 2744.02(B)(2) provides that “political subdivisions are liable for injury, death, or

loss to person or property caused by the negligent performance of acts by their employees with

respect to proprietary functions of the political subdivisions.” It is well-established that the

performance of law enforcement duties is a governmental function, not a proprietary function.

Brothers v. Cty. of Summit, No. 5:03-cv-1002, 2007 WL 1567662, at *23 (N.D. Ohio May 25,

2007) (citing O.R.C. § 2744.01(C)(2(a)). Accordingly, as the alleged negligent actions arose

during the performance of a governmental function, MCSO and the Board are immune from

liability.

Second, regarding the claims against the Defendant Deputies, Plaintiff alleges that each of

them was “negligent in the performance of their duties,” which resulted in him suffering emotional

distress. (Doc. 1 at ¶¶ 38, 49, 54, 58, 63). Under Ohio law “a police officer cannot be held

personally liable for mere negligence.” Wingrove v. Forshey, 230 F. Supp. 2d 808, 827 (S.D. Ohio

Nov. 2002) (“The Court is to begin with the presumption of immunity.”). Accordingly, as Plaintiff

only ever alleges that the Defendant Deputies acted negligently, his claims against them are barred

by statutory immunity.

Thus, the Undersigned RECOMMENDS that Defendants be GRANTED summary

judgment on these claims to the extent the Court assumes jurisdiction over them.

IV. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion for Summary

Judgment (Doc. 18) be GRANTED and Plaintiff’s claims be dismissed. Additionally, given this

disposition, Defendants’ Motion to Strike Reply to Response to Motion (Doc. 27), is DENIED as

moot.

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed finding or recommendations to which objection is made, together with supporting

authority for the objection(s). A District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: February 22, 2021 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE