Clark v. Whaley

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALYSON CLARK, Administrator of

the Estate of Logan Clark,

Plaintiff, Case No. 1:20-cv-300

JUDGE DOUGLAS R. COLE

v.

BRENT WHALEY, et al.,

Defendants.

OPINION AND ORDER

On April 29, 2019, Logan Clark drove home on Interstate 71 (“I-71”) after an

evening that included at least a few drinks. When his northbound exit was closed, he

attempted a U-turn through the grassy median to reach the southbound lanes so he

could use that exit. He got stuck. Defendant Brent Whaley, a Sheriff’s Deputy who

observed the maneuver, stopped to investigate. He cited Clark for driving in the

median but claims he did not detect that Clark was intoxicated. Whaley left the scene

when Clark told him a tow truck was on the way. It never arrived. About an hour

later, Clark tried to walk across the highway, only to be struck and killed by a semi-

truck. Clark’s sister, Alyson, as administrator of Clark’s estate,1 sued the semi-truck

driver, the company that employed her, Deputy Whaley, and Whaley’s supervisor,

Lieutenant Ryan Saylor. The Court previously granted summary judgment to the

semi-truck defendants. (Doc. 62). The matter is now before the Court on the officers’

1 Throughout this Opinion, the Court refers to Logan Clark as “Clark” and Alyson Clark as

“Plaintiff Clark.”

Motion for Summary Judgment. (Doc. 75). For the reasons below, the Court GRANTS

Defendants’ Motion as to Plaintiff Clark’s federal-law claims and DISMISSES those

claims WITH PREJUDICE. Separately, the Court declines to retain supplemental

jurisdiction over Plaintiff Clark’s state-law claims, which raise novel and unsettled

questions of Ohio law, and so DISMISSES those claims WITHOUT PREJUDICE.

BACKGROUND

The facts are largely—although not entirely—undisputed. On April 29, 2019,

Logan Clark left his job at Outback Steakhouse around 7:00 p.m. and stopped at a

nearby bar around 8:00 p.m. to have a drink. (Hounshell Dep., Doc. 69, #2258, 2266).2

One became a few. Over the course of the evening, he consumed (at minimum) three

to four alcoholic beverages. (Id. at #2269–70). He drank three of those before 9:23

p.m., at which point he left the bar for approximately two-and-a-half hours. (Id. at

#2271; Hounshell Rep., Doc. 70-1, #2291). During that time, no one knows where he

went or what he did. (Doc. 69, #2271). Clark then briefly returned to the bar just

before midnight to purchase a final drink at 11:57 p.m., carrying it out of the bar with

him (and presumably drinking it). (Id. at #2270; Doc. 70-1, #2291). He then climbed

into his car to drive home, which ultimately led to him traveling northbound along I-

71. (Doc. 70-1, #2291, 2434).

About fifteen minutes after Clark left the bar, Warren County Sheriff’s Deputy

Brent Whaley observed Clark driving in the left northbound lane on I-71. (Id. at

2 Warren County Sheriff’s Office Sergeant Joseph Hounshell oversees the criminal

investigation section of the Sheriff’s Office. (Doc. 69, #2214). In connection with Clark’s

death, Hounshell prepared a comprehensive report. (Doc. 70-1).

#2291). Just past mile marker 31, Clark turned left into the highway’s grassy

median.3 (Id.; Incident Rep., Doc. 38-1, #1339). Deputy Whaley activated his overhead

lights and pulled up behind Clark, who had lost traction in the median and become

stuck. (Doc. 38-1, #1339). On that portion of I-71 north, two traffic lanes go in each

direction (with a shoulder on each side of both the northbound lanes and the

southbound lanes), separated by a grassy median. (Whaley Dep., Doc. 37, #1193). The

area is not illuminated. (See Richardson Decl., Doc. 30-1, #648).4 The speed limit is

seventy miles per hour. (Bens Dep., Doc. 28, #160).5

After parking on the left shoulder of the northbound lanes, Whaley exited his

vehicle and approached Clark’s car. (Doc. 37, #1198–99). He spoke to Clark through

the open passenger window. (Doc. 38-1, #1339). Clark informed Whaley that he lived

in Lebanon, Ohio. (Id.). He also told Whaley that he had planned to exit I-71 onto

State Route 48, only to find the ramp closed. (Id.). Not knowing how else to get home,

Clark decided to perform a U-turn (from I-71 North to I-71 South) by driving directly

through the highway’s median. (Id.). When Deputy Whaley requested identification,

Clark started to hand Whaley his Speedway rewards card but stopped when Whaley

pointed this out. (Whaley Dep., Doc. 37, #1222). Clark then conceded he did not have

his driver’s license with him, and he instead provided his social security number.

(Incident Rep., Doc. 38-1, #1339). Whaley briefly returned to his cruiser where he

3 From all available evidence, it does not appear Clark pulled into a designated turn-around,

but instead turned into the grassy median itself.

4 Carl and Kelly Richardson were co-drivers of the truck that hit Clark. (Doc. 30-1, #645).

5 This is the deposition of Warren County Sheriff’s Deputy Richard Bens. (Doc. 28, #125).

wrote Clark a citation for driving his vehicle in the median. (Id.). Whaley then

returned to Clark’s car to issue him the citation. (Id.).

Although Plaintiff Clark disputes this,6 Whaley says he did not detect any of

the traditional signs of intoxication from Clark during their interaction. (Id.). For

example, Whaley states Clark was responsive and calm, spoke without slurred

speech, and did not have an odor of alcohol, shaky hands, red or glassy eyes, a flushed

face, or a blank stare. (Id.). Indeed, on two occasions, Clark thanked Whaley and

shook his hand without difficulty. (Id.). Despite this, Whaley at some point decided

to ask Clark to submit to a Portable Breath Test (e.g., a breathalyzer). (Doc. 37,

#1226–27). Clark readily consented and denied having consumed any alcohol. (Id.;

Doc. 38-1, #1339). For whatever reason, Whaley changed his mind and did not

administer the test.7 (Doc. 37, #1227).

After issuing the citation, Whaley told Clark he could leave and returned to his

cruiser. (Doc. 38-1, #1339). Clark tried to depart, but his car remained stuck. (Id.). At

that point, Clark exited his vehicle and again spoke to Whaley, explaining that he

could not get traction. (Id.). Whaley offered to call a tow truck, but Clark declined,

responding “I got it” and informing Whaley that he had already arranged a tow. (Id.).

Clark thanked Whaley for the offer, and they shook hands; both then re-entered their

respective vehicles. (Whaley Dep., Doc. 37, #1227; Incident Rep., Doc. 38-1, #1339).

6 Plaintiff Clark disputes that Whaley did not recognize Clark’s intoxication. She does so

based on expert testimony, coupled with the amount of alcohol detected in Clark’s body

during the autopsy. (Resp., Doc. 77, #2574).

7 There is some dispute about whether Whaley asked this question as matter of routine or if

something about Clark’s demeanor prompted Whaley to ask it here. (See Resp., Doc. 77,

#2567).

Whaley left the scene around 12:29 a.m., before any tow truck arrived. (Doc. 38-1,

#1339).

Whaley’s departure violated a Warren County Sheriff’s Office policy against

abandoning stranded motorists. (Id.; Payne Dep., Doc. 65, #1806). While Whaley was

driving away, he radioed Warren County Sheriff’s Office Lieutenant Ryan Saylor to

inform him of the events, including that he had left Clark before the tow truck

arrived. (Incident Rep., Doc. 38-1, #1339). According to a Narrative Supplement to

the incident report, the entire interaction between Whaley and Clark lasted 21

minutes and 48 seconds.8 (Id.). And throughout, Clark and his vehicle remained in

roughly the same location in the median. (Id.).

Sadly, the tow truck never arrived. Instead, at approximately 1:22 a.m. on

April 30, 2019, nearly an hour after Whaley left the scene, a semi-truck struck and

killed Clark as he attempted to walk across the northbound lanes of the highway.

(Hounshell Rep., Doc. 70-1, #2291). An autopsy report found that Clark had a high

level of alcohol in his system—.157 in his blood and .192 in his vitreous fluid.

(Hounshell Dep., Doc. 69, #2272). No facts suggest he had more to drink following

Whaley’s departure (e.g., there is no evidence that he stored or drank more alcohol in

his vehicle). (Payne Dep., Doc. 65, #1728). And Clark bought his final (known) drink

8 The Narrative Supplement’s timeline is somewhat contradictory. (See Incident Rep., Doc.

38-1, #1339). In the document, Whaley reports he approached Clark at 12:11 a.m. and

returned to his cruiser at 12:29 a.m. (Id.). Defendants’ Motion for Summary Judgment

likewise says that Whaley departed at 12:29 a.m. (Doc. 75, #2432). This suggests the stop

lasted roughly 18 minutes. Yet the Narrative Supplement separately states that the stop

lasted “21 minutes and 48 seconds.” (Doc. 38-1, #1339). This roughly four-minute discrepancy

does not impact the Court’s holding.

at 11:57 p.m.—fifteen minutes before encountering Whaley and an hour-and-a-half

before his death. (Doc. 70-1, #2291). Yet, the evidence also can only conclusively prove

that Clark consumed three drinks and bought a fourth that evening, which he carried

out of the bar. (Doc. 69, #2269–70). That presents a bit of a quandary. If Clark

consumed only three or four standard-pour bar drinks over the relevant six-and-a-

half-hour period (from 7:00 p.m. to 1:22 a.m. when the truck struck him), that would

not explain the alcohol levels the autopsy detected. Thus, Clark likely consumed

additional alcohol, either before midnight or after Deputy Whaley left the scene.9

Shortly after the incident, the Warren County Sheriff’s Office opened an

investigation into Whaley’s conduct. (Doc. 65, #1713). A lieutenant in the office

reviewed the available materials and interviewed Whaley, Saylor, and others. (See

Doc. 66-1, #1797–1802). The investigation ultimately concluded: “Deputy Whaley

violated [Warren County Sheriff’s Office] Traffic and Motorist Services policy 61.4.1

when he abandoned a stranded motorist. Deputy Whaley failed to take appropriate

action in accordance with the policies of this agency and therefore was unsatisfactory

in his performance.” (Id. at #1806).

On April 15, 2020, Alyson Clark, as the administrator of Logan Clark’s estate,

sued in this Court. (Doc. 1). Plaintiff Clark’s suit named Deputy Whaley and

9 Of course, a single “drink” does not always contain a fixed quantity of alcohol. Clark’s first

three drinks were a beer and two shots, so those are a given. (Hounshell Dep., Doc. 69, #2269–

70). And he consumed them before 9:30 p.m. So, it is perhaps possible that Clark’s fourth

drink near midnight contained a very large quantity of a high-proof liquor, which possibly

could have led to the alcohol levels detected in Clark’s autopsy. It strikes the Court that the

more likely explanation, though, was additional, unaccounted for, alcoholic drinks. In any

event, the evidence does not show what drink Clark ordered at 11:57 p.m. (Id. at #2259–60).

Lieutenant Saylor in their individual and official capacities, along with the semi-

truck driver and trucking company. (Id. at #1). (The Court previously granted the

latter two summary judgment. (Doc. 62).) As against the two officers, Plaintiff Clark

proceeds under § 1983. (Doc. 1, #10–20). She alleges that Whaley violated Clark’s

constitutional rights by abandoning him in a dangerous position along the highway

and that Saylor is liable for failing to supervise Whaley. (Id.). Plaintiff Clark also

alleges that Whaley and Saylor committed various torts under state law. (Id.).

After the parties completed discovery, Deputy Whaley and Lieutenant Saylor

moved for summary judgment on all remaining claims. (Doc. 75). Both argued they

did not violate Clark’s constitutional rights and, in any event, are entitled to qualified

immunity. (Id. at #2421). They further contend that state-law immunity shields them

from Plaintiff Clark’s state claims. (Id. at #2422). Plaintiff Clark counters that

Whaley violated Clark’s substantive due process rights by failing to protect him from

danger. (Resp., Doc. 77). Specifically, Plaintiff Clark disputes that Whaley did not

recognize Clark’s intoxication, offering expert testimony to prove this point. (Id. at

#2577; Doc. 76-1, #2542). And she claims that Saylor failed to properly supervise

Whaley when Saylor learned of his policy violation. (Doc. 77, #2577–78). Defendants

thereafter replied. (Doc. 82).

STANDARD OF REVIEW

Defendants seek summary judgment. “The ‘party seeking summary judgment

always bears the initial responsibility of informing the district court of the basis for

its motion and identifying those portions’ of the record which demonstrate ‘the

absence of a genuine issue of material fact.’” See, e.g., Rudolph v. Allstate Ins. Co.,

No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

But the non-moving party cannot defeat summary judgment merely by

pointing to any factual dispute. Indeed, “[t]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment; the requirement is that there be no genuine issue of material

fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 697 (6th Cir. 2020) (bracket and

emphases omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986)). In other words, the dispute must be “genuine” (i.e., supported by evidence)

and go to a “material fact” (i.e., a fact that could matter to the outcome).

In sum, after reviewing all of the cited evidence, the Court must determine

whether there is some “sufficient disagreement” that necessitates submitting the

matter to a jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993)

(quoting Anderson, 477 U.S. at 251–52). In making that determination, though, the

Court must view the evidence in the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

court must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.”).

Whether or not facts are material turns to some extent on the nature of the

claims involved. Here, as noted, Plaintiff Clark’s federal claims arise under § 1983.

To prevail on that claim, she must show that the officer defendants violated Clark’s

constitutional rights. Even then, the officers are entitled to qualified immunity unless

their conduct “violates a clearly established statutory or constitutional right of which

a reasonable person in the official’s position would have known.” Brown v. Lewis, 779

F.3d 401, 411 (6th Cir. 2015) (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311

(6th Cir. 2006)). Thus, the officers can prevail at summary judgment by showing

either that there was no constitutional violation, or that any violation did not involve

a clearly established constitutional right. Id. (citing Sample v. Bailey, 409 F.3d 689,

696 (6th Cir. 2005)). And the Court is free to take those two questions—the existence

of the constitutional right, or whether it was clearly established—in either order. See

Pearson v. Callahan, 555 U.S. 223, 231 (2009). Here, the Court starts with the former,

and as it concludes no constitutional violation occurred, the Court ends its analysis

there.

LAW AND ANALYSIS

Logan Clark should not have died on April 30, 2019. But the fact of his death

alone does not create liability nor overcome summary judgment. Rather, the Court

must evaluate whether the record evidence reveals a genuine issue of material fact

as to whether Deputy Whaley and/or Lieutenant Saylor violated Clark’s rights. Here,

the record evidence does not. Accordingly, neither officer is liable in either their

individual or official capacities. This entitles Defendants to judgment as a matter of

law on Plaintiff Clark’s § 1983 claims.

Plaintiff Clark’s state-law claims, though, may present a closer question.

Indeed, they appear to involve a matter of first impression under state law. So the

Court concludes that, as it is dismissing the remaining federal claims, the Court will

decline supplemental jurisdiction over those state-law claims.

A. Plaintiff Clark Has Not Created A Genuine Issue Of Material Fact That

Defendants Violated Clark’s Substantive Due Process Rights.

Plaintiff Clark begins her Complaint with her federal-law claims. She alleges

that Whaley and Saylor, in their individual and official capacities, violated Clark’s

Fourteenth Amendment substantive due process rights. (Resp., Doc. 77, #2570–71).

In pressing these claims, she faces an uphill battle. After all, neither Whaley nor

Saylor directly harmed Clark; rather, a private actor struck Clark roughly an hour

after Whaley left the scene. Plaintiff Clark’s claims rest not on what Whaley and

Saylor did, but rather what they did not do. Namely, Whaley did not breathalyze

Clark (which presumably may have led to Clark’s arrest for driving under the

influence), nor did he stay with Clark until a tow truck arrived. Saylor, for his part,

knew of Whaley’s decisions and did not instruct Whaley to do anything different.

The reason this complicates things for Plaintiff Clark is that, as a general

matter, state officials have no constitutional duty to protect the public from dangers

private actors pose. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

197 (1989). That is not the end of the story though. This general rule comes with

exceptions, and Plaintiff Clark points to two: the state-created-danger exception and

the custodial exception.

The state-created-danger exception imposes liability on state officials who

perform affirmative acts that place someone in a dangerous position, even if a third-

party’s act ultimately causes the harm. Jackson v. Schultz, 429 F.3d 586, 590 (6th

Cir. 2005). To avail themself of this exception, a plaintiff must make three showings:

(1) an affirmative act by the state which either created or increased the

risk that the plaintiff would be exposed to an act of violence by a third

party; (2) a special danger to the plaintiff wherein the state’s actions

placed the plaintiff specifically at risk, as distinguished from a risk that

affects the public at large; and (3) the state knew or should have known

that its actions specifically endangered the plaintiff.

Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003). But critically,

under the first prong, “[t]he question is not whether the victim was safer during the

state action, but whether he was safer before the state action than he was after it.”

Id. (emphasis added); see DeShaney, 489 U.S. at 201 (“That the State once took

temporary custody of [plaintiff] does not alter the analysis, for when it returned him

to his father’s custody, it placed him in no worse position than that in which he would

have been in had it not acted at all.”).

Plaintiff Clark’s claim fails under this framework; she cannot show Whaley

undertook an “affirmative act” that “created or increased” any risk to Clark.

Cartwright, 336 F.3d at 493. Rather, Clark’s problems arose from getting his car

stuck in the interstate median, an act he undertook on his own, perhaps as a result

of having consumed alcohol. Both when Deputy Whaley arrived, and when he

departed, Clark and his disabled car sat idle where Whaley found them. Thus, Clark

was in the same danger when Whaley left as when Whaley arrived. And while true

that Clark may have been “safer during the state action,” i.e., Whaley presumably

would have prevented Clark from walking into traffic, the doctrine precludes

consideration of the safety that an officer’s presence creates. Id. And all of this is true

even more as to Saylor, who was not even present. Plaintiff Clark points to no

affirmative act that Saylor took that increased Clark’s danger.

Plaintiff Clark responds by asserting that Whaley took the affirmative step of

abandoning Clark, an inebriated and stranded motorist. (Resp., Doc. 77, #2576). But

she points to no authority that says merely leaving a scene, without more, is an

affirmative act. And her inability to identify precedent supporting that position

makes some sense. Plaintiff Clark essentially argues that, by leaving, Whaley

elevated Clark’s risk of harm. But this is just another way of saying Clark was “safer

during” Whaley’s presence—a non-starter. See Cartwright, 336 F.3d at 493. In sum,

Defendants did not violate Clark’s rights under the state-created-danger exception.

Plaintiff Clark likewise falls short on the custody exception. “[W]hen the State

takes a person into its custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility for his safety.”

DeShaney, 489 U.S. at 199–200. The duty arises “when the State by the affirmative

exercise of its power so restrains an individual’s liberty that it renders him unable to

care for himself, and at the same time fails to provide for his basic human needs—

e.g., food, clothing, shelter, medical care, and reasonable safety.” Foy v. City of Berea,

58 F.3d 227, 231 (6th Cir. 1995). For this obligation to arise, though, state officials

must first place the plaintiff in custody akin to that of “incarcerated prisoners, those

involuntarily committed to mental institutions, foster children, pre-trial detainees,

and those under ‘other similar restraint of personal liberty.’” Jackson, 429 F.3d at

590 (quoting DeShaney, 489 U.S. at 200). “The overarching prerequisite for custody

is an affirmative act by the state that restrains the ability of an individual to act on

his own behalf.” Id.

Two related problems arise with that approach—(1) Whaley never placed

Clark in custody, and (2) even if he had, Whaley, who was no longer on the scene,

owed Clark no residual duty when the accident occurred.

As to the former, Whaley did not arrest Clark, nor otherwise meaningfully

restrain his liberty. At most, Whaley seized Clark in a brief Terry-style stop while

issuing the citation. See Terry v. Ohio, 392 U.S. 1, 30–31 (1968) (permitting officers

to briefly seize a person based on reasonable suspicion); United States v. Lott, 954

F.3d 919, 923 (6th Cir. 2020) (“Traffic stops are analyzed under the Terry v. Ohio

framework because they are more akin to an investigative detention ... than a

custodial arrest.” (internal citation omitted)). And courts have recognized such brief

and unintrusive detentions differ from the “custody” DeShaney envisions.10 Forrester

v. Stanley, 394 F. App’x 673, 674–75 (11th Cir. 2010) (holding that a Terry-stop did

not place the detainee “in custody” under the Fourteenth Amendment custody

exception); Villalon v. City of McAllen, No. 7:20-cv-264, 2022 WL 1547759, at *6–7

10 Granted, the Terry doctrine exists under the Fourth Amendment, 392 U.S. at 30–31, while

the custody exception applies to claims under the Fourteenth Amendment. And the Court

knows of no reason why “in custody” under the Fourteenth Amendment and “in custody”

under the Fourth Amendment must necessarily refer to precisely the same circumstances.

But it is difficult to imagine a circumstance where a police officer performs a brief Terry-

seizure in a manner that so restrains a detainee’s liberty that it creates custodial relationship

under the Fourteenth Amendment.

(S.D. Tex. Apr. 7, 2022), report and recommendation adopted, 2022 WL 1540425 (S.D.

Tex. May 16, 2022) (“[A] Terry stop will [not] give rise to [a Fourteenth Amendment

custodial duty] due precisely to the lack of custody”); see also Foy, 58 F.3d at 229–31

(recognizing that a brief interaction with police did not place the plaintiff in custody);

Moore v. LaSalle Corrs., Inc., No. 3:16-cv-1007, 2018 WL 2294220, at *3 (W.D. La.

May 3, 2018), report and recommendation adopted, 2018 WL 2292760 (W.D. La. May

18, 2018) (declining to impose a duty on police to provide plaintiff medical care where

police performed a Terry-stop).

Further confirming this result, it is difficult to see how, as a factual matter,

Whaley’s brief investigative seizure placed Clark “in custody.” Unlike the examples

of “custody” that DeShaney provides, Whaley did not handcuff Clark, detain him in

his squad car, transport him to another location, or perform any other “similar

restraint of personal liberty.”11 Jackson, 429 F.3d at 590 (quoting DeShaney, 489 U.S.

at 200); see also Cartwright, 336 F.3d at 492 (finding no custody where police gave

plaintiff a consensual drive to a safer area). Likewise, Plaintiff Clark offers no

colorable argument that Saylor, without being present, placed Clark in custody.

11 In determining when a party is in or remains in custody, the Sixth Circuit also relies on

whether the person (rather than the officer) made the decision to terminate the interaction.

See Salyers v. City of Portsmouth, 534 F. App’x 454, 459 (6th Cir. 2013) (“In this case, [the

plaintiff] was free to choose where to go, and exercised that freedom by refusing [the officer’s]

alternative suggestions.”); Stemler v. City of Florence, 126 F.3d 856, 862 n.2 (6th Cir. 1997)

(finding police liable where the intoxicated plaintiff “involuntarily left the scene of the police

stop”). This too demonstrates Clark was not in custody, as the interaction ended at Clark’s

prompting. Deputy Whaley only left after Clark rejected Whaley’s offer to help, said “I got it,”

shook Whaley’s hand, and thanked him. (Incident Rep., Doc. 38-1, #1339).

Moreover, even assuming Clark was in custody during the interaction, Whaley

owed Clark no residual duty arising from that custody when the accident occurred an

hour after Whaley left. As a general matter, the custodial duty continues only during

the duration of the custody itself. See Williams v. City of Georgetown, 774 F. App’x

951, 955 (6th Cir. 2019) (noting the lower court did not analyze the custodial

exception “because Burns was not in police custody when he was killed”). Here, any

hypothetical custody had long since ended when the accident occurred. And, as

described more fully below, while circumstances may exist where the custody-based

duty extends past the end of the custody, those circumstances were not present here.

Clark’s rejoinder as to both custody exception shortcomings is that her case

mirrors Davis v. Brady, 143 F.3d 1021 (6th Cir. 1998). There, police arrested an

inebriated person in downtown Flint, Michigan, took him to a nearby police station,

and then transported him to the county jail. Id. at 1023–24. When that facility was

full, the officers drove the person to an unfamiliar area outside the city limits and left

him at the side of a 55-mile-per-hour road without lights or sidewalks to “teach [him]

a lesson.” Id. A car later struck the plaintiff, and the plaintiff sued the officers

claiming they violated his substantive due process rights. Id. at 1024–27. On this

egregious set of facts, the Sixth Circuit sided with the plaintiff. Id. at 1027.

In fairness to Clark’s argument, the Sixth Circuit opinion in Davis certainly

suggests that the duty custody creates can extend past the end of the custody itself.12

12 This approach comes from language in DeShaney, where the Supreme Court noted that a

state actor owes no ongoing duty to a person previously in custody where the state actor

Specifically, Davis held that officers have a duty not to “put [a person] in a situation,

while in custody, … that caused [them] injuries,” and that this duty extends “even

after the custodial relationship has ended.” Id. at 1026.

But despite some factual similarities, Davis is inapposite. First, before it can

matter when Whaley’s custody-based duty to Clark ended, Plaintiff Clark must first

answer: “Was there custody at all?” There, Davis does not help her. In Davis, the

police clearly placed the plaintiff in custody by arresting and transporting him. Here,

by contrast, Whaley did not arrest Clark, let alone transport him. As a result, no

custody-based duty arose in the first instance. Second, the post-custody duty Davis

envisioned concerns not leaving the person worse off as a result of the way officers

released the person from custody. As noted, Whaley left Clark in no worse shape than

Whaley found him.13 Accordingly, Plaintiff Clark has not shown how the events here

could possibly fall within the custody exception.

Perhaps sensing these shortcomings, Plaintiff Clark makes much of her view

that Whaley recognized Clark’s intoxication and acted with “deliberate indifference”

towards his wellbeing when stranding him. (Resp., Doc. 77, #2575). But absent

“places him in no worse position than that in which he would have been had [the state actor]

not acted at all.” 489 U.S. at 201.

13 The post-release custodial duty Davis recognized may fit more comfortably under the state-

created-danger exception rather than the custody exception. See Johnson v. Metro. Gov’t of

Nashville, 512 F. Supp. 2d 1129, 1134–35 (M.D. Tenn. 2007), aff’d, 294 F. App’x 995 (6th Cir.

2008). The “affirmative act” the state-created-danger exception requires could be seen as the

act of releasing the person from custody. Accordingly, if that affirmative act makes the person

less safe, that could give rise to liability under the state-created-danger exception for third-

party acts. See R.S. v. Lucas Cnty. Child.’s Servs., No. 22-3501, 2022 WL 17730531, at *4 (6th

Cir. Dec. 16, 2022) (“Taking control and making a status-quo changing decision that leaves

the victim less safe is an affirmative act.”).

placing Clark in custody or taking an “affirmative act” that increased his danger,

Whaley cannot have acted with deliberate indifference as a constitutional matter by

leaving Clark along the highway. Without more, Whaley’s “failure to protect” Clark

“against private violence simply does not constitute a violation of the Due Process

Clause.” DeShaney, 489 U.S. at 197.

Finally, and briefly, Plaintiff Clark’s supervisory claim against Saylor in his

individual capacity and her official capacity claims likewise fail. First, Saylor cannot

be held liable in his individual capacity for failing to supervise Whaley because

Whaley did not violate Clark’s rights. McQueen v. Beecher Comty. Schs., 433 F.3d

460, 470 (6th Cir. 2006) (“[A] prerequisite of supervisory liability under § 1983 is

unconstitutional conduct by a subordinate of the supervisor.”).

Next, for similar reasons, neither Whaley nor Saylor can be liable in their

official capacities. By naming them in their official capacities, Plaintiff Clark brings

a § 1983 Monell claim against the Warren County Sheriff’s Office itself.14 United Food

& Com. Workers Local 1099 v. City of Sidney, 364 F.3d 738, 752 (6th Cir. 2004). And

because Plaintiff Clark has failed to show that either Whaley or Saylor violated

Clark’s rights, the Warren County Sheriff’s Office cannot be subject to Monell

liability. Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir. 2004) (“A

municipality or county cannot be liable under § 1983 absent an underlying

14 Plaintiff Clark never explicitly says she desires to hold the Sheriff’s Office liable under a

Monell theory. However, she intends to hold the Saylor liable in his official capacity for

“inadequately supervis[ing] Defendant Whaley when he knew and approved of him leaving a

stranded motorist in the middle of the highway.” (Resp., Doc. 77, #2578). This is, in essence,

a Monell claim.

constitutional violation by its officers.” (citing City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986))); Brooks v. Werth, No. 4:20-cv-38, 2020 WL 2615516, at *6 (N.D. Ohio

May 22, 2020) (“[B]ecause no constitutional violation has been shown, Plaintiff’s

Monell claim against Chief Werth, in his official capacity … cannot survive as a

matter of law. There can be no liability under Monell without an underlying

constitutional violation.”).

For these reasons, the Court GRANTS Defendants’ Motion for Summary

Judgment (Doc. 75) as to Plaintiff Clark’s federal claims. The Court DISMISSES

those claims WITH PREJUDICE.

B. The Court Declines To Rule On Defendants’ Motion For Summary

Judgment As To Clark’s State-Law Claims.

In addition to her federal claims, Plaintiff Clark also asserts various state-law

claims. The Court originally exercised supplemental jurisdiction over these state

claims, as 28 U.S.C. § 1367 allows. But now, no federal claims remain in this action,

so the Court must consider whether to maintain that jurisdiction.

Once all federal claims are dismissed, a district court’s decision whether to

retain supplemental jurisdiction over state-law claims is “purely discretionary.”

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C.

§ 1367(c)). “In determining whether to retain jurisdiction over state-law claims, a

district court should consider and weigh several factors, including the ‘values of

judicial economy, convenience, fairness, and comity.’” Gamel v. City of Cincinnati, 625

F.3d 949, 951 (6th Cir. 2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 (1988)). In addition, a district court should consider whether the pendent state

claim involves a novel or difficult question of state law. 28 U.S.C. § 1367; see Province

v. Cleveland Press Pub. Co., 787 F.2d 1047, 1055 n.11 (6th Cir. 1986) (affirming a

district court’s continued exercise of supplemental jurisdiction in part because “the

district court was not called upon to interpret some abstruse Ohio legal doctrine”).

Given the remaining state-law claims here, the exact contours of state-law

official immunity may matter. Whaley, in performing his official duties, has state-law

immunity unless (in part) his “acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner.” O.R.C. § 2744.03(A). And “the violation of

[a] departmental policy enacted for the safety of the public … may be relevant to

determining the culpability of a course of conduct.” Anderson v. Massillon, 983 N.E.2d

266, 274 (Ohio 2012). But a defendant’s violation is reckless under § 2744.03(A) only

where the defendant intentionally violated the provision and the violation “involv[ed]

a high degree of probability that serious harm will result.” Id. (quoting 2 Restatement

(Second) of Torts § 500, Comment e (1965)); Argabrite v. Neer, 75 N.E.3d 161, 167

(Ohio 2016) (“Recklessness requires knowledge by the actor that his ‘conduct will in

all probability result in injury.’” (quoting O’Toole v. Denihan, 889 N.E.2d 505, 507

(Ohio 2008))).

Here, Whaley’s level of culpability may present a close and potentially novel

case. To start, no one disputes that Whaley violated department policy when he chose

to leave the scene before a tow truck arrived. (Resp., Doc. 77, #2566–67). Instead, the

question is whether Whaley realized the danger Clark posed to himself at that time.

Although subject to debate, viewing the facts in the light most favorable to Clark,

Whaley arguably recognized (or at least should have) Clark’s intoxication, yet

declined to administer a breathalyzer test that would have confirmed it. (Id. at

#2580). Instead, on this view of the facts, Whaley left Clark drunk, alone, and

stranded on a darkened highway’s median, knowing he may have to cross two lanes

of interstate traffic on foot to receive assistance. (Id. at #2573; Doc. 66-1, #1800).

Without deciding the matter, this strikes the Court as potentially a situation

“involving a high degree of probability that serious harm will result.” Anderson, 983

N.E.2d at 274. Separately, the Court notes that Whaley’s relevant conduct does not

fit neatly within existing caselaw. Prior cases analyzed departmental violations

where the official violated policy in furtherance of performing his or her immediate

objective—e.g., firemen driving recklessly to reach a blaze, or a police officer violating

car chase policies to catch a fleeing criminal. See generally id.; Argabrite, 75 N.E.3d

161. Here, Whaley’s immediate policing objective likely should have been protecting,

or perhaps arresting, Clark. By leaving (and violating policy in doing so), he furthered

neither objective. Nonetheless, the Court cannot say whether or to what extent that

may influence state-law immunity under O.R.C. § 2744.03(A).

In sum, it appears that no Ohio court has decided a case on similar facts. If

that is so, Clark’s immunity presents a novel state-law question. Accordingly, this

Court leaves the matter to be decided in the Ohio courts. And as Saylor’s state-law

liability may (or may not) turn, at some level, on Clark’s liability, that conclusion

carries over to the claims against Saylor, as well. Thus, the Court DISMISSES these

claims WITHOUT PREJUDICE.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ Motion for

Summary Judgement (Doc. 75) as to Plaintiff Clark’s federal-law claims in her

Complaint (Doc. 1) and DISMISSES those claims WITH PREJUDICE. Moreover,

the Court declines to maintain supplemental jurisdiction over Plaintiff Clark’s state-

law claims, and so DISMISSES those claims WITHOUT PREJUDICE. To the

extent Ohio law permits, Plaintiff may refile these claims in an appropriate state

court. In that event, the Court encourages the parties to re-use the discovery already

produced to avoid the duplication of efforts. As for this case, the Court DIRECTS the

Clerk to ENTER JUDGMENT and TERMINATE this matter’from the docket.

SO ORDERED.

January 5, 2023 :

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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