The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JACK RUNSER, :
:
Plaintiff, : Case No. 3:21-cv-00160
:
v. : Judge Thomas M. Rose
:
CITY OF DAYTON, et al., :
:
Defendants. :
______________________________________________________________________________
ENTRY AND ORDER GRANTING DEFENDANT CHRISTOPHER MALSON’S
MOTION TO DISMISS AMENDED COMPLAINT (DOC. NO. 32) AND
MOTION TO DISMISS BY DEFENDANT JONATHAN SOPCZAK (DOC. NO.
36)
______________________________________________________________________________
This action is brought by Plaintiff Jack Runser (“Runser”) alleging various claims under
the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973, 42 U.S.C. § 1983,
and various common law tort claims. In his Amended Complaint (the “Amended Complaint”),
Runser alleges that he was wrongfully detained by two Dayton Police officers, who failed to
accommodate his physical disabilities. (Doc. No. 31.) Runser further alleges that the Police
Department failed to accommodate his disabilities during the investigation of the incident and
ratified the officers conduct through their investigation. (Id.) Defendant Christopher Malson
(“Malson”) and Jonathan Sopczak (“Sopczak”) filed separate motions to dismiss (the “Motions”)
(Doc. No. 32; Doc. No. 36), arguing that the Amended Complaint fails to state a claim against
either Malson or Sopczak. (Doc. No. 32; Doc. No. 36.) For the reasons discussed below, the Court
GRANTS both Motions.
I. BACKGROUND
The Complaint alleges that Runser, who suffers from cerebral palsy and is non-verbal, left
his home to go to Dollar General. (Doc. No. 31 at PageID 301.) Runser typically uses the median
to avoid walking on the road due to his disabilities. (Id.) The Dayton Police received a call from
a driver requesting a welfare check on an individual walking down the median. (Id.) Defendant
Officer Joshua Wiesman (“Wiesman”) and Officer Seth Victor (“Victor”) responded to the area
and followed Runser into the Dollar General parking lot. (Id. at PageID 301-02.)
Runser is unable to hear or speak and can only communicate through lip reading, sign
language, or writing. (Id.) As a result, he was unaware of the actions Officers Wiesman and Victor
were taking upon pulling into the Dollar General parking lot. (Id.) Victor grabbed Runser and, at
this point, Runser became aware the officers were trying to communicate with him. (Id.) Runser
indicated to the officers that he could not hear and motioned for a pen and paper so he could
communicate with the officers. (Id.) However, Runser was unable to write on the paper Victor
provided to him due to the tremors in his hands and the lack of a hard surface to write on. (Id. at
PageID 303.)
Wiesman removed his mask and asked Runser for identification, which he did not have.
(Id.) At this point, the officers grabbed Runser and handcuffed him behind his back. (Id.) The
officers transported Runser to a local hospital, despite Runser’s indication that he did not want to
leave the vicinity of the Dollar General. (Id. at PageID 303-04.) Runser was taken into the hospital
and turned over to the hospital staff. (Id. at PageID 304.) The officers subsequently left Runser
at the hospital. (Id.)
Runser filed a complaint with the Dayton Police Department regarding his treatment by
officers Wiesman and Victor. (Id.) Sergeant Jonathan Sopczak (“Sopczak”) was assigned to
investigate the incident. (Id.) Sopczak failed to utilize an interpreter during his investigation, so
that he could communicate with Runser. (Id.) Major Christopher Malson (“Malson”) was
responsible for reviewing the results of the investigation. (Id.) A notice was sent to Runser by
Malson indicating that there was insufficient evidence to support his complaint. (Id. at PageID
306.)
This lawsuit was initially filed in the Common Pleas Court of Montgomery County on May
29, 2021. (Doc. No. 5.) Defendants removed the case to this Court on June 10, 2021 pursuant to
this Court’s jurisdiction over the federal law claims under 28 U.S.C. §§ 1331 and 1343 and its
supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. (Doc. No. 1.)
Runser filed his Amended Complaint on January 4, 2022. (Doc. No. 31.) Malson filed his Motion
on January 7, 2022 (Doc. No. 32) and Runser filed his response on January 28, 2022 (Doc. No.
38). Malson filed his reply on February 3, 2022. (Doc. No. 39.) Sopczak filed his Motion on
January 17, 2022 (Doc. No. 36) and Runser filed his response on February 7, 2022 (Doc. No. 40.)
Sopczak filed his reply on February 21, 2022. (Doc. No. 42.) Both motions are fully briefed and
ripe for review.1
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” While this rule “does not
require ‘detailed factual allegations’ … it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
1 The Court must address an issue of concern with counsel for Runser and Malson. Both counsel included quotations
that were either unattributed to a specific case or the quotation did not appear in the case cited. For instance, Malson
included the quote “allegations that a defendant mishandled a grievance or failed to investigate a complaint are
insufficient to state a claim,” with a citation to Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). (Doc. No. 32 at
PageID 323.) This quote does not appear in that case. Runser similarly includes a quote with the citation, “See Nelson
v. Miller, 170 F.3d 641 (6th Cir. 1999).” (Doc. No. 38 at PageID 364.) A “See” is not an appropriate cite for a quote.
Moreover, Runser fails to include a page citation. Additionally, Runser states, “[h]owever, individual liability can be
established against Defendant Malson and others under Section 504 of the Rehabilitation Act of 1973 when
prospective declaratory and injunctive relief is sought. Ex parte Young, 209 U.S. 123, 28. S. Ct. 441, 52 L.Ed. 714
(1908).” (Id.) The Court need not explain why a case decided in 1908 could not have possibly commented on a law
passed in 1973. These citation errors are unnecessary and both counsel would be well served by more diligently
reviewing the accuracy of their citations moving forward.
Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007)).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6) (providing for motions to assert a “failure
to state a claim upon which relief can be granted”). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Iqbal, 556 U.S. at 678. A claim is facially plausible when it includes “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. This standard is not the same as a probability standard, but “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal quotation marks omitted). Thus, if a plaintiff
has “not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be
dismissed.” Twombly, 550 U.S. at 570.
When ruling on a motion to dismiss, the Court must accept the factual allegations of the
complaint as true and construe them in a light most favorable to the non-moving party. Twombly,
550 U.S. at 554-55. However, the Court is not bound to accept as true a legal conclusion couched
as a factual allegation. Id. at 555-56. “In evaluating a motion to dismiss [a court] may consider
the complaint and any exhibits attached thereto, public records, items appearing in the record of
the case and exhibits attached to the defendant’s motion to dismiss so long as they are referred to
in the complaint and are central to the claims contained therein.” Luis v. Zang, 833 F.3d 619, 626
(6th Cir. 2016) (internal quotation marks omitted).
III. ANALYSIS
Malson and Sopczak both argue that Runser’s ADA and Rehabilitation Act claims should
be dismissed because there is no individual liability under the ADA or the Rehabilitation Act.
(Doc. No. 32 at PageID 320-21; Doc. No. 36 at PageID 348-49.) They further argue that the
Amended Complaint fails state a claim under Section 1983 because it does not allege that either
Defendant encouraged or acquiesced to the alleged unconstitutional conduct. (Doc. No. 32 at
PageID 321-25; Doc. No. 36 at PageID 349-50.) Finally, both Malson and Sopczak argue that the
remaining claims must be dismissed because they either do not direct any allegations toward the
Defendants or they state claims for municipal liability. (Doc. No. 32 at PageID 325-26; Doc. No.
36 at PageID 350-52.)
In response, Runser argues that, under Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52
L.Ed. 714 (1908), an individual official may be held liable if the plaintiff seeks prospective relief.
(Doc. No. 38 at PageID 364-65; Doc. No. 40 at PageID 379-80.) Runser further argues that the
Amended Complaint sufficiently pleads claims against Malson and Sopczak under Section 1983
because individual supervisors may be liable if they “failed to properly train and supervise officers,
failed to properly investigate allegations of excessive force, and attempted to cover-up
constitutional wrongdoing” because they “are sufficient to show implicit authorization, approval,
or knowingly acquiescing in the unconstitutional conduct of the subordinates.” (Doc. No. 38 at
PageID 363; Doc. No. 40 at PageID 378.) Runser does not address the remainder of Malson and
Sopczak’s arguments.
A. ADA and Rehabiliation Act Claims
Title II of the ADA prohibits a public entity from discriminating against disabled
individuals and states that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132. Under Title II, the proper defendant is the public entity. Williams v. McLemore, 247 F.
App’x 1, 8 (6th Cir. 2007) (citing Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000)). The Sixth
Circuit and courts in this district have repeatedly held that the ADA does not permit public officials
to be sued in their individual capacities. Williams, 247 F. App’x at 8; Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999); Quinn v. Ohio State Highway Patrol, No. 2:07-cv-
187, 2007 U.S. Dist. LEXIS 82289 at *11, 2007 WL 3308014 (S.D. Ohio Nov. 6, 2007); Sorah v.
Tipp City Exempted Vill. Sch. Dist. Bd. Of Educ., 2020 U.S. Dist. LEXIS 45343, at *11 (S.D. Ohio
Mar. 16, 2020). Similarly, there is no individual liability under the Rehabilitation Act. Hiler v.
Brown, 177 F.3d 542, 546-47 (6th Cir. 1999); Hamilton v. Carson-Newman Coll., No. 3:09-CV-
479, 2010 U.S. Dist. LEXIS 100388, at *13, 2010 WL 3806503 (E.D. Tenn. Sep. 23, 2010).
Defendants Malson and Sopczak first argue that Runser’s ADA claims against them in
their individual capacities are prohibited because there is no individual liability under the ADA.
(Doc. No. 32 at PageID 320-21; Doc. No. 36 at PageID 348.) Runser argues that individual
liability may be established again Malson and Sopczak via the precedent set in Ex Parte Young.
(Doc. No. 38 at PageID 364; Doc. No. 40 at PageID 379.) In reply, Malson argues that Runser’s
claim is also barred against Malson because Runser only seeks retrospective relief from Malson.
(Doc. No. 39 at PageID 368-69.)
Runser’s argument that individual liability remains under Ex Parte Young is incorrect. In
Ex Parte Young, the Supreme Court announced an exception to Eleventh Amendment sovereign
immunity. See Ex Parte Young, 209 U.S. 123. However, one of the keys to falling within the Ex
Parte Young exception is, “a claim must seek prospective injunctive relief against an individual
state official in their official capacity and that claim must seek to end a continuing violation of
federal law.” Lawrence v. Maryland, No. No. 3:18-cv-304, 2019 U.S. Dist. LEXIS 164947, at
*18, 2019 WL 4723073 (E.D. Tenn. Sep. 26, 2019) (citing Diaz v. Michigan Dep’t of Corr., 703
F.3d 956, 964 (6th Cir. 2013)) (emphasis added); Carten v. Kent State Univ., 282 F.3d 391, 395
(6th Cir. 2002).
In this case, Malson2 and Sopczak ask for relief in their individual capacities. As a result,
the precedent in Ex Parte Young is inapplicable to their arguments. Therefore, Counts I and II are
dismissed to the extent they direct claims against Malson and Sopczak in their individual
capacities.
B. 42 U.S.C. § 1983 Claim
Section 1983 establishes “‘a cause of action for deprivation under color of state law, of any
rights, privileges or immunities secured by the Constitution or laws of the United States.’” Jones
v. Muskegon Cty., 625 F.3d 935, 940-41 (6th Cir. 2010) (quoting Horn v. Madison Cty. Fiscal Ct.,
22 F.3d 653, 656 (6th Cir. 2002)). To prevail on a cause of action under Section 1983, a plaintiff
must prove “‘(1) the deprivation of a right secured by the Constitution or laws of the United States
(2) caused by a person acting under the color of state law.’” Shadrick v. Hopkins Cty., 805 F.3d
724, 736 (6th Cir. 2015) (quoting Jones, 625 F.3d at 941)). Moreover, “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937 (2009).
At the outset, it is well-settled that a government official may not be held liable under
Section 1983 based on a theory of respondeat superior. Iqbal, 556 U.S. at 676; Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999); Peatross v. City of Memphis, 818 F.3d 233, 243 (6th Cir. 2016).
2 In Malson’s reply, he addresses the official capacity analysis in Ex Parte Young for the purpose of pointing out the
requirement that the plaintiff seek prospective relief. (Doc. No. 39 at PageID 368-69.) It is not clear whether this is
to address Runser’s argument or to seek a dismissal of the official capacity claims. Therefore, the Court will not
consider the arguments in the reply as an attempt to dismiss the official capacity claims.
A supervisory official’s failure to supervise control, or train an individual is not actionable unless
the supervisor “‘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 of the offending
officers.’” Shehee, 199 F.3d at 300 (quoting Hays v. Jefferson Cty., 668 F.2d 869, 874 (6th Cir.
1982)); See also Peatross, 818 F.3d at 243; Griffith v. Franklin Cty., 975 F.3d 554, 579 (6th Cir.
2020). Moreover, in investigation related claims of liability, “[b]ecause the injury will have
already occurred by the time of the specific investigation, ‘there can be no causation’ from that
single failure to investigate.” Pineda v. Hamilton Cty., 977 F.3d 483, 495 (6th Cir. 2020) (quoting
David v. City of Bellevue, 706 F. App’x 847, 853 (6th Cir. 2017)); Kirk v. Calhoun Cty., Nos. 19-
2456, 20-1365, 2021 U.S. App. LEXIS 20835, at *19 (6th Cir. Jul. 12, 2021) (without evidence of
a pattern of inadequate investigations of similar incidents “there is no demonstration of causation
to show that the allegedly inadequate investigation caused the constitutional violation in
question”).
Runser relies on Peatross, for the proposition that “an individually named supervisor failed
to properly train and supervise officers, failed to properly investigate allegations of excessive
force, and attempted to cover-up constitutional wrongdoing are sufficient to show implicit
authorization, approval, or knowingly acquiescing in the unconstitutional conduct of the
subordinates.” (Doc. No. 38 at PageID 363.) However, a closer reading of Peatross demonstrates
why Runser’s claims against Malson and Sopczak must fail.
In Peatross, Anjustine Vanterpool (“Vanterpool”) was killed when two officers fired
several rounds into his vehicle at a gas station. Peatross, 818 F.3d at 237. The officers had not
observed Vanterpool commit any illegal acts, but one of the officers was on the phone with a
fellow officer who informed him that Vanterpool’s car was identical to one he had seen the day
before with expired tags that did not belong to that vehicle. Id. The officer tried to stop Vanterpool
from leaving the gas station and, in the process, fired multiple shots into his car, killing him. Id.
at 237-38. The estate brought claims against the officers involved in the shooting, as well as, the
director of the police department, alleging he failed to train, supervise, monitor, and discipline the
officers of the department. Id. at 238.
In its holding, the Sixth Circuit pointed to the director’s acknowledgment that the police
force needed to improve its disciplinary process and the local mayor’s public admonishment of the
director for the behavior of the department, as demonstrating acquiescence to the officers’ conduct.
Id. at 243. The court also pointed to the director’s frequent “rubber stamping” of the behavior of
officers who shot and killed individuals, holding that it “‘could be reasonably expected to give rise
to just the sort of injuries that occurred’ – Vanterpool’s unfortunate death.” Id. at 244 (quoting
Campbell v. City of Sprinboro, 700 F.3d 779, 790 (6th Cir. 2012)).
Runser does not allege facts sufficient to demonstrate that Malson and Sopczak encouraged
or acquiesced to this incident of alleged misconduct. Instead, Runser alleges that Malson and
Sopczak conducted an investigation, but failed to use an interpreter and falsified information in
the report in order to exonerate the two officers. (Doc. No. 31 at PageID 305.) Runser does not
allege that Malson or Sopczak had previously engaged in similar conduct in their investigations or
that it was a pattern or practice for them to “rubber stamp” officer’s behavior. Instead, Runser
states that the Defendants’ actions constitute a “pattern and practice of civil rights abuses by
Defendants City of Dayton, against persons who live within or travel through the Defendant City
of Dayton’s territorial jurisdiction, and results from these Defendants establishment of a policy,
practice or custom that encourages or acquiesces to civil rights violations. . . .” (Doc. No. 31 at
PageID 309.) Runser does not allege that Malson or Sopczak specifically conducted previous
flawed investigations or undertook actions that actively encouraged the officer’s actions. Instead,
the Amended Complaint lodges those allegations against the City of Dayton in the Amended
Complaint. Runser has failed to state a claim against Malson or Sopczak under Section 1983.
Therefore, Count III is dismissed to the extent it directs a claim at Malson and Sopczak.
C. 42 U.S.C. § 1983 Conspiracy Claim
Malson further argues that Runser’s Section 1983 claim, to the extent it is directed toward
Malson, is not saved by the allegation of “conspiracy” contained in a single paragraph of Count
III. (Doc. No. 32 at PageID 324.) Runser’s Amended Complaint states:
That the Defendants carried out and perpetrated the mutually supportive conspiracy
to deprive Plaintiff of his rights against unreasonable searches and seizures by
participating in an effort to conceal the violation by omitting facts within their
report pertaining to the aforementioned incident.
(Doc. No. 31 at PageID 309.)
To successfully plead a Section 1983 conspiracy, Runser must allege sufficient facts to
state a claim that “(1) a single plan existed, (2) the conspirators shared a conspiratorial objective
to deprive the plaintiffs of their constitutional rights, and (3) an overt act was committed.” Revis
v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). This pleading standard is “relatively strict.” Fieger
v. Cox, 524 F.3d 770, 776 (6th Cir. 2008). A plaintiff’s “failure to plead a plan or agreement to
violate his constitutional rights is fatal to his conspiracy claim.” Heyne v. Metro. Nashville Pub.
Schs., 655 F.3d 556, 564 (6th Cir. 2011). In addition, a Section 1983 conspiracy claim “must be
pled with some degree of specificity and . . . vague and conclusory allegations unsupported by
material facts will not be sufficient to state such a claim.” Spadafore v. Gardner, 330 F.3d 849,
854 (6th Cir. 2003) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)).
It is not entirely clear that Runser intended this singular reference to state a conspiracy
claim. Indeed, Runser did not address a potential conspiracy claim in his opposition. However,
to the extent a conspiracy claim is intended, it is clear that Runser has not sufficiently plead any
of the three elements necessary to state a conspiracy claim. Therefore, any conspiracy claim
included in Count III is dismissed.3
D. Plaintiff’s Remaining Claim
Defendants Malson and Sopczak argue that Count IV (civil assault), Count V (false
arrest/false imprisonment), and Count VII (intentional infliction of emotional distress) do not
mention either Defendant. (Doc. No. 32 at PageID 325; Doc. No. 36 at PageID 350-51.) Similarly,
both Defendants argue that there is no individual liability under Count VI (negligent hiring,
training, supervision and retention) or Count VIII (municipal liability and violation of civil rights).
(Doc. No. 32 and PageID 325-26; Doc. No. 351-52.) Runser does not address these counts in
either of his oppositions.
It is clear that Count IV, Count V, Count VII, and VIII are not directed toward Malson or
Sopczak. The allegations in the first three of these counts do not reference Malson or Sopczak
specifically. Moreover, the factual allegations reference only the specifics of Runser’s detainment
and physical encounters with Wiesman and Victor. Count VIII is specifically directed at the
Dayton Police Department and the policies, customs, and practices it permitted that allegedly led
to Runser’s injuries. (Doc. No. 31 at PageID 313-15.) Therefore, Count IV, Count V, Count VII,
and Count VIII are dismissed to the extent a claim is directed against Malson and Sopczak.
Defendants Malson and Sopczak both argue that individual liability does not attach for the
claim of negligent hiring, training, supervision, or retention alleged by Runser in Count VI.
3 This ruling should not be construed to mean that Count III is dismissed in its entirety. Instead, the ruling should be
understood to mean that any conspiracy claim intended in Count III is dismissed, while the remainder of the claim
stands.
However, this count only mentions Malson and Sopczak in as far as they conducted an incompetent
investigation and the City of Dayton failed to adequately train them or hold them to account for
their incompetence. (Doc. No. 31 at PageID 311-12.) The allegations in Count VI are not directed
at Malson and Sopczak, but instead at the City of Dayton. Therefore, Count VI is dismissed to the
extent a claim is directed against Malson and Sopczak.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant Christopher Malson’s Motion
to Dismiss Amended Complaint (Doc. No. 32) and Motion to Dismiss by Defendant Jonathan
Sopczak (Doc. No. 36).
DONE and ORDERED in Dayton, Ohio, this Thursday, February 24, 2022.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE