# Gant v. Elam

> District Court, S.D. Ohio · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10379902

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
MARCUS GANT, Case No. 1:21-cv-117
Plaintiff, Judge Matthew W. McFarland

JOHN ELAM, et al.,
Defendants.

ORDER GRANTING IN PART MOTION TO DISMISS (Doc. 7)

This matter is before the Court on a motion to dismiss filed by Defendants Elam,
Cox, Harris, and Chambers-Smith (Doc. 7.) Plaintiff Marcus Gant, an inmate at Lebanon
Correctional Institution, brings several causes of action related to an alleged excessive use
of force while incarcerated there. The named defendants move to dismiss Gant’s
complaint in its entirety. For the reasons explained below, the Court largely grants
Defendants’ motion, except to the extent Gant brings claims against them in their
individual capacities.
FACTS
A. Parties
Gant is an inmate at Lebanon Correctional Institution (“LeCI”) in Warren County,
Ohio. Defendants John Elam and Chae Harris work at LeCI and are, respectively, a
corrections officer and the Warden. They are both employees of the Ohio Department of
Rehabilitation and Corrections (“ODRC”). Defendant FNU Cox is a corrections officer at

Mansfield Correctional Institution and also an ODRC employee. Defendant Annette
Chambers-Smith is the Director of ODRC. Also sued are unnamed defendants who are
ODRC employees at LeCI. All defendants are allegedly “persons” under 42 U.S.C. § 1983
and are being sued in both their individual and official capacities. (Compl., Doc. 1, □ 4-
2.)
B. Factual Allegations
Gant alleges that, on February 25, 2020, Elam and Cox entered his cell to
investigate a claim of contraband. At the time, he had a cell phone in his possession. He
tried to flush it down the toilet. Because of his attempt to discard the phone, he was put
in a chokehold. From that position, Elam and Cox delivered repeated blows to his face
and head. They continued to strike him after he lost consciousness. (Id. at §[{ 11-16.)
He was taken to the infirmary. Pictures included in the Complaint show him with
a bloody nose and bloodshot and blackened eyes. His injuries were so severe that he
could not be treated at LeCI and had to be transported to a local hospital, Atrium Medical
Center in Middletown, to receive medical care. A CT scan disclosed numerous fractures,
including a fracture to his left orbital wall and to his right nasal bone. From there, he was
transferred to Ohio State University Medical Center in Columbus for surgical
management, which included ophthalmological, oral, and maxillofacial surgical
consultations. He needed to take multiple trips to OSU Medical Center and the Franklin
Medical Center. He suffers ongoing vision and nerve damage, as well as emotional
distress, fear, anxiety, and nightmares. (Id. at □□ 21-27.)
On December 4, 2020, Gant sent a public record request to LeClI for all

documentation related to the use-of-force incident. He alleges that Cox failed to comply
with ODRC policies by not completing a Use of Force Report. The Complaint further
states that unnamed defendants also failed to comply with the responsibilities when
dealing with use-of-force events. He further claims he was criminally charged with
Tampering with Evidence. (Id. at 33-37.)
ANALYSIS
The Federal Rules of Civil Procedure allow, upon motion, the dismissal of a
complaint “for failure to state a claim upon which relief can be granted.” Fed. R. Civ. R.
12(b)(6). A Rule 12(b)(6) motion to dismiss tests the plaintiff’s cause of action as stated in
the complaint. Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). The Court
accepts a complaint’s factual allegations as true; but this presumption of truth does not
extend to its legal conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus,
surviving a motion to dismiss is a matter of pleading sufficient factual content. 16630
Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009)). A claim for relief must be “plausible on its face.”
Iqbal, 556 U.S, at 678. That is, the complaint must lay out enough facts for a court to
reasonably infer that the defendant wronged the plaintiff. 16630 Southfield, 727 F.3d at
502. A complaint that lacks such plausibility warrants dismissal. Iqbal, 556 U.S. at 678.
Gant advances three claims under 42 U.S.C. § 1983: use of excessive force (Count
1); failure to prevent use of excessive force (Count 2); and failure to train and supervise
staff (Count 3). He also brings four state law claims: negligence (Count 4), civil
conspiracy (Count 5), malicious prosecution (Count 6), and assault and battery (Count 7).

Defendants move to dismiss the lawsuit. First, they argue that the Eleventh
Amendment deprives this Court of subject matter jurisdiction over Gant’s claims against
Defendants in their official capacities. Second, they claim that all Defendants in their
official capacities should be dismissed under the doctrine of qualified immunity. Third,
Defendants Harris and Chambers-Smith maintain that they are entitled to the dismissal
of the supervisory § 1983 claim based on respondeat superior. Fourth, Defendants argue
that the Court lacks jurisdiction to hear the state law claims. And, last, Defendants claim
that Gant fails to state valid claims.
A. Eleventh Amendment and Qualified Immunity (Counts 1 and 2)
As a threshold matter, the Court must determine whether it has jurisdiction.
Under the Eleventh Amendment, federal courts lack jurisdiction to hear suits by private
citizens against a State, unless the State consents or unless Congress validly and
indisputably abrogates state immunity. Lloyd v. Pokorny, No. 2:20-CV-2928, 2020 WL
4436350, at *3 (S.D. Ohio Aug. 3, 2020). This immunity extends to state officials sued in
their official capacity. Id. Suits against state officials in their individual capacity,
however, may survive Eleventh Amendment immunity. See Allen v. Ohio Dep't of Rehab.
& Correction, 128 F. Supp. 2d 483, 490 (S.D. Ohio 2001).
Defendants only argue that the claims against them should be dismissed as to their
official capacities, not their individual capacities. Gant points out that he is bringing both
official capacity and individual capacity claims. He does not, however, cite a waiver
statute providing that Defendants may be sued in their official capacities. See, e.g., Johns
v. Supreme Ct. of Ohio, 753 F.2d 524, 527 (6th Cir. 1985). Because Gant does not allege any

exception to Eleventh Amendment immunity, the Court dismisses the official capacity
claims but not the individual capacity claims. Gant clearly alleges claims against
Defendants in their individual capacity, so those claims remain. E.g., Moore v. City of
Harriman, 272 F.3d 769, 773 (6th Cir. 2001). This case will proceed on Counts 1 and 2 to
the extent they seek Defendants’ liability in their individual capacities.
As Defendants focus their qualified immunity argument only on the official
capacity claims—which are dismissed under the Eleventh Amendment—and do not
address that issue in their reply brief, the Court need not reach qualified immunity here.
B. Use of Excessive Force (Count 1), in Violation of § 1983
Defendants dedicate three sentences to their argument that Gant fails to state a §
1983 use of force claim. This argument fails.
The primary reason why is because Defendants argue content outside the
pleadings. They posit that Gant cannot on one hand allege that Defendants Elam and
Cox assaulted him and, at the same time, allege he was unconscious at the time of the
assault. This misreads the complaint. Gant alleges that he was put into a chokehold and
then received blows to the face and head. Then he lost consciousness. (Compl., Doc. 1,
15-16.) This series of facts is plausible. And Defendants’ second argument — that
Gant’s injuries “likely occurred during Defendants’ attempts to retrieve the contraband
that he was actively flushing down the toilet” (Doc. 7, Pg. ID 43) —suggests alternative
facts outside the pleadings that are inappropriate to consider at the Rule 12 stage.
Additionally, Defendants fail to demonstrate why the allegations fail to state a
valid § 1983 claim. While some issues may be crystal clear and require only a few

sentences to explain why they lack merit, this use of force claim supported by many
paragraphs of factual content is not one of them. See McPherson v. Kelsey, 125 F.3d 989,
995 (6th Cir. 1997) (issues raised in a perfunctory way without an effort to develop an
argument are deemed waived).
Accordingly, the individual capacity claim in Count 1 survives.
C. Failure to Prevent Use of Excessive Force (Count 2), in Violation of § 1983
In their reply brief, Defendants argue that Gant has not articulated sufficient facts
to support a deliberate indifference claim against Defendant Cox (Count 2). But they did
not raise this argument in their motion to dismiss. Our cases have repeatedly recognized
that “arguments raised for the first time in a party's reply brief are waived.” Hunt v. Big
Lots Stores, Inc., 244 F.R.D. 394, 397 (N.D. Ohio 2007). For this reason, the Court does not
reach Defendants’ argument to dismiss Count 2. The individual capacity claim in Count
2 will proceed.
D. Failure to Train and Supervise Staff, in Violation of § 1983 (Count 3)
Defendants next argue that Gant’s claims against Defendants Harris and
Chambers-Smith fail, because they are essentially attempts to find liability under the
doctrine of respondeat superior. They are correct.
“[{L}iability cannot be imposed on a supervisor under § 1983 based on the theory
of respondeat superior.” Winkler v. Madison Cty., 893 F.3d 877, 898 (6th Cir. 2018). The
Sixth Circuit recently spoke to the pleading standard that applies to supervisory liability
in § 1983 cases. Crawford v. Tilley, 15 F.4th 752, 761 (6th Cir. 2021). First, a plaintiff must
plead active involvement: meaning that a supervisory official, at the very least, implicitly

authorized, approved, or knowingly acquiesced in the unconstitutional conduct of an
offending subordinate. Id. Importantly, there needs to be some “active unconstitutional
behavior” on the supervisor's part. Id. (quotation omitted). Mere failure to act is not
enough. Nor is simple negligence or recklessness. A supervisor cannot be held liable just
because she was charged with overseeing someone who violated another person’s
constitutional rights. Id. Second, there must be a “causal connection” between the
defendant's active unconstitutional behavior and the plaintiff's injuries. “In other words,
the defendant's execution of his job functions must have caused the plaintiff's injury.” Id.
at 762.
Gant alleges that Defendants Harris and Chambers-Smith were responsible for
sufficiently training and supervising the employees of LeCI and ODRC to avoid the use
of excessive force. Their alleged failures include the failure to investigate allegations of
excessive force and establishing policy that prevents the use of such force. As such, they
amount to deliberate indifference, he claims. (Compl., Doc. 1, {J 49-55.)
In briefing, Gant argues that his case is similar to the facts of Coley v. Lucas □□□□
Ohio, 799 F.3d 530, 542 (6th Cir. 2015). There, the plaintiffs alleged that a sheriff had a
duty to train and supervise employees to avoid the use of excessive force. He was alleged
to have had full knowledge of the assault on the victim but made false statements about
his knowledge of the assault. These claims sufficed to show that he at least implicitly
authorized, approved, or knowingly acquiesced in the offending conduct. Id. at 542.
Gant fails to adequately plead supervisory liability under § 1983. He makes the
conclusory allegation that Defendants Harris and Chambers-Smith knowingly failed to

train. But he does not plead facts that support the inference that they were actively
involved or that there was a causal connection between their active involvement and his
injuries. Crawford, 14 F.4th at 761-62. Moreover, Coley does not support his case. The
plaintiff there alleged that the defendant had full knowledge of what had happened to
the victim. Gant’s complaint, by contrast, speaks in general and conclusory terms, failing
to make it plausible that Defendants Harris or Chambers-Smith had any active
involvement or causal connection to Gant’s injuries.
Accordingly, the Court dismisses the claim for failure to train and supervise staff
(Count 3).
E. Jurisdiction Over State Law Claims (Counts 4, 5, 6, and 7)
Defendants argue that this Court lacks jurisdiction to hear Gant’s state law claims.
Again, they are correct.
Ohio law provides that state employees are immune from state law claims until
the Ohio Court of Claims (OCC) finds otherwise. R.C. § 2743.02(F); Troche v. Morgan, No.
1:12-CV-176, 2013 WL 4499462, at *4 (S.D. Ohio Aug. 21, 2013), report and recommendation
adopted, No. 1:12-CV-00176, 2014 WL 861393 (S.D. Ohio Mar. 4, 2014). Civil actions
against state employees “shall first be filed against the state in the court of claims that has
exclusive, original jurisdiction to determine, initially, whether the officer or employee is
entitled to personal immunity.” R.C. § 2743.02(F). So until the OCC determines that a
state employee is not immune from suit, federal district courts lack jurisdiction over state
law claims brought against the employee. Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir.
1989); Gravely v. Madden, 964 F. Supp. 260, 263 (S.D. Ohio 1995).

Gant brings state claims for negligence, civil conspiracy, malicious prosecution,
and assault and battery. Nowhere does he allege that he has first filed these claims with
the OCC. He does not address this jurisdictional issue at all in his papers. Thus, R.C. §
2743.02 presents a roadblock between his state law claims and this Court's jurisdiction
over them.
Accordingly, as it has done in similar situations, this Court dismisses without
prejudice Gant’s state law claims. Such a dismissal will not prejudice him from re-
asserting his state law claims if the OCC determines that Defendants are not immune
from suit. Troche, 2013 WL 4499462, *5.
CONCLUSION
For the reasons explained above, the Court rules as follows:
(1) The Court GRANTS IN PART the motion to dismiss as to Counts 1 and 2 and
DISMISSES WITH PREJUDICE those counts to the extent they are brought
against Defendants Elam and Cox in their official capacity. However, Counts
1 and 2 remain pending against Defendants Elam and Cox in their individual
capacities.
(2) The Court DISMISSES WITH PREJUDICE Count 3.
(3) The Court DISMISSES WITHOUT PREJUDICE Counts 4, 5, 6, and 7,
In light of the above, this matter will proceed against Defendants in their
individual capacities on Count 1, Use of Excessive Force under § 1983, and on Count 2,
Failure to Prevent Use of Excessive Force under § 1983.

IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Hee, Ws
By:
JUDGE MATTHEW W. McFARLAND

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10379902. Public record. Not legal advice.