Westbrook v. City Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SHERMAN WESTBROOK,

Plaintiff,

Case No. 1:21-cv-476

v. JUDGE DOUGLAS R. COLE

CITY OF CINCINNATI, et al.,

Defendants.

OPINION AND ORDER

The Defendants (the City of Cincinnati and Cincinnati police officers Rasheen

Jennings, Kenneth Dotson, and Brandon Dean) move to dismiss (see Doc. 5) Plaintiff

Sherman Westbrook’s Complaint (Doc. 1). They believe that Westbrook’s Complaint

fails to state a claim upon which relief could be granted and that Dotson and Dean

are entitled to qualified immunity. They do not, however, request that the Court

dismiss Westbrook’s Fourth Amendment allegations against Jennings. For the

reasons below, the Court GRANTS IN PART and DENIES IN PART this motion.

(Doc. 5).

BACKGROUND

The relevant facts are straightforward. On July 26, 2019, plainclothes police

officers busted down the door of Westbrook’s girlfriend’s apartment, where Westbrook

and his son were visiting. (Doc. 1, #3). The officers apparently had a felony warrant

for Westbrook’s arrest. (See Doc. 5, #17). Westbrook alleges that Officers Dean and

Dotson restrained him while Officer Jennings tased him “in the eye and mouth”

without him resisting. (Doc. 1, #3–4). Westbrook further alleges that he fell to the

ground, defecated and urinated on himself, and was tased again. (Id. at #4).

On July 16, 2021, Westbrook filed the Complaint in this Court. (Id.). He sues

Jennings, Dotson, and Dean in their individual and official capacities and the City of

Cincinnati. Westbrook makes three central claims. First, he claims that the officers

used excessive force to arrest him, violating his Fourth Amendment right to be free

from unreasonable seizure. (Id. at #5). Second, he claims that the officers

intentionally inflicted emotional distress upon him. (Id. at #5–6). And third, he claims

that his injuries are a “direct and proximate result” of the City’s negligent retention

of the officers. (Id. at #6–7). Westbrook also makes “claims” under 42 U.S.C. § 1983

and § 1988 that he calls his fourth and fifth claims. More on that later. In December

2021, the Defendants moved to dismiss all of Westbrook’s claims except for his Fourth

Amendment claim against Jennings. (Doc. 5). That motion is now before the Court.

LAW AND ANALYSIS

A complaint must “state[] a claim for relief that is plausible, when measured

against the elements” of a claim. Darby v. Childvine, Inc., 964 F.3d 440, 444 (6th Cir.

2020) (citation omitted). Westbrook, then, “must make sufficient factual allegations

that, taken as true, raise the likelihood of a legal claim that is more than possible,

but indeed plausible.” Id. In making that assessment, the Court must “construe the

complaint in the light most favorable to the plaintiff, accept its allegations as true,

and draw all reasonable inferences in favor of the plaintiff.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Thus, the well-pled facts must be sufficient to “raise a right to relief above the

speculative level,” Twombly, 550 U.S. at 546–47, such that the asserted claim is

“plausible on its face,” Iqbal, 556 U.S. at 678.

Before applying that standard here, some housekeeping is in order. First, as

mentioned above, Westbrook purports to set forth five “claims” in his Complaint. The

first three—excessive force, intentional infliction of emotional distress, and negligent

retention—are all tangible claims. But his last two claims, that the Defendants

violated 42 U.S.C. § 1983 and § 1988, are not.

The Fourth Amendment prohibits the use of excessive force by police in

effecting arrests. See U.S. Const. amend. IV (setting out “[t]he right of the people to

be secure in their persons … against unreasonable … seizures”). But the Fourth

Amendment itself does not provide a cause of action to someone who believes they

have endured excessive force. The vehicle for that action is § 1983.1 So his excessive

force claim under the Fourth Amendment (Count 1) is in fact a § 1983 claim. Counts

2 (intentional infliction) and 3 (negligent retention), by contrast, are state-law claims.

So far, so good. But there is no such thing as the freestanding § 1983 claim Westbrook

purports to assert in Count 4. Section 1983 “does not itself create any substantive

1 Section 1983 states, in relevant part: “Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress, except that in any action brought against a

judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or declaratory relief was

unavailable.” 42 U.S.C. § 1983.

rights; it provides a cause of action for rights found elsewhere.” Lopez v. Foerster, No.

20-2258, 2022 WL 910575, at *2 (6th Cir. Mar. 29, 2022) (citing Manuel v. City of

Joliet, 580 U.S. 357, 370 (2017)). As the Defendants note, “no one violates § 1983.”

(Doc. 5, #18). In the same vein, § 1988 permits a court to award attorneys’ fees to a

prevailing party in a § 1983 action (in many cases). No one “violates” that provision

either.2

So, Westbrook actually advances three claims: a § 1983 excessive force claim

(Count One), and two state-law claims—intentional infliction of emotional distress

(Count Two) and negligent retention (Count Three). Moreover, the Complaint

suggests that the first two are pleaded against all Defendants, while the third

(negligent retention) is pleaded solely against the City. The Motion (Doc. 5),

meanwhile, asks the Court to dismiss all claims against all Defendants, except

Westbrook’s Fourth Amendment excessive force claim (Count One) against Jennings

in his individual capacity.

As Westbrook’s Complaint sets forth federal law (Count One) and state law

(Counts Two and Three) claims, and the analysis differs as to each, the Court will

start with the federal claim and then discuss the state claims.

2 Section 1988 states, in relevant part: “In any [applicable] action or proceeding … the court,

in its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs, except that in any action brought against a judicial officer

for an act or omission taken in such officer’s judicial capacity such officer shall not be held

liable for any costs, including attorney’s fees, unless such action was clearly in excess of such

officer’s jurisdiction.” 42 U.S.C. § 1988.

A. Section 1983 Excessive Force Claim

1. The Official-Capacity Claims Are Duplicative Of The Claim

Against The City, And The Latter Fails As A Matter Of Law.

A plaintiff in a § 1983 action can assert either individual-capacity or official-

capacity claims, or both, against individual defendants such as the officers here. Here,

Westbrook asserts both. The effect of the two types of claims, though, is different. If

an officer were found liable on an individual-capacity claim, liability would run to

that particular officer. Peatross v. City of Memphis, 818 F.3d 233, 240 (6th Cir. 2016).

But Westbrook’s claims against each officer “officially,” i.e., in their official capacities,

are “only another way of pleading an action against an entity of which an officer is an

agent.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).

For relief, then, the plaintiff “must look to the government entity itself” rather than

its agents. Kentucky v. Graham, 473 U.S. 159, 166 (1985). But Westbrook already

asserts this claim against the City. (Doc. 1, #6–7) So Westbrook’s official-capacity

claims are merely duplicative of that claim.

As for the claim against the City itself, the question is when is a city liable for

its officers’ actions? Monell is the seminal case addressing that issue. That case (and

§ 1983) requires that, for liability to attach, a constitutional violation “occurred

because of a municipal policy or custom.” Burgess v. Fischer, 735 F.3d 462, 478 (6th

Cir. 2013) (citing Monell, 436 U.S. at 691). To meet this burden, Westbrook can offer

one of four things: (1) the existence of an illegal official policy or enactment; (2) the

existence of a policy of inadequate training or supervision; (3) the existence of a

custom of tolerance or acquiescence to federal rights violations; or (4) that an official

with final decision-making authority ratified the illegal actions. See id.; see also

Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).

Westbrook certainly expresses his desire that the City be held accountable. But

the Complaint is unclear why, under Monell, that should be. (See Doc. 1, #11–12). As

the Defendants point out, the Complaint includes “no description of any official policy,

decision by a final policymaker, failure to train or custom of tolerance, that might

give rise to a Monell claim.” (Doc. 5, #19). Westbrook’s response, though, clarifies that

he intended to make a failure-to-train claim, which is one of the ways to show liability

under Monell. (Doc. 7, #50 –51). So, in the interest of fairness, the Court will consider

that claim.

A failure-to-train claim ultimately requires Westbrook to show “prior instances

of unconstitutional conduct demonstrating that the municipality had ignored a

history of abuse and was clearly on notice that the training in this particular area

was deficient and likely to cause injury.” Burgess, 735 F.3d at 478 (cleaned up).3 Thus

at the complaint stage, Westbrook must allege facts that make it at least plausible

that he can make that showing. He believes that he has done so. After all, he alleges

that Jennings and Dean “have been the subject of numerous investigations” including

“allegations of excessive force, wrongful arrests, stealing money from citizens and

3 The Supreme Court has acknowledged a “narrow range of circumstances” in which a single

event may suffice for a failure-to-train claim. Connick v. Thompson, 563 U.S. 51, 63 (2011).

But to take advantage of that option, Westbrook must show “a complete failure to train the

police force, training that is so reckless or grossly negligent that future police misconduct is

almost inevitable or would properly be characterized as substantially certain to result.”

Harvey v. Campbell County, 453 F. App’x 557, 567 (6th Cir. 2011). He does not allege that

here.

other violations of law and police procedure.” (Doc. 1, #4). Westbrook also alleges that

“some” of those investigations found “Defendants’ conduct to be wrongful.” (Id.).

This is not enough. Westbrook does not allege, for example, “a single fact

related to the training the City provides its police officers, any prior incidents

involving comparable uses of force by [local law enforcement], or anything else that

would plausibly suggest that the city maintained a policy or custom that contributed

to the alleged deprivations” of his rights. Boddy v. City of Memphis, No. 22-5259, 2022

WL 12258977, at *3 (6th Cir. Oct. 21, 2022). He does not point to a single decision

that the City made that could give rise to a failure-to-train claim.

True enough, Westbrook cites prior internal investigations conducted against

two of the officers involved here. But an allegation that two officers (in a large

department) violated various unidentified departmental procedures over the course

of their careers does not show “a history of abuse” or put the City “on notice that the

training in this particular area was deficient.” Burgess, 735 F.3d at 478 (cleaned up)

(emphasis added). Put simply, Westbrook has not shown why the City would be liable

under Monell for the officers’ conduct. So his official-capacity excessive force claims

against the officers and his excessive force claim against Cincinnati all fail.

2. The Individual-Capacity Excessive Force Claims Against Dotson

And Dean Can Proceed

The Defendants next ask the Court to dismiss Westbrook’s individual-capacity

claims against Dotson and Dean on the ground of qualified immunity. For his part,

Westbrook believes the alleged facts should prevent Dotson and Dean from receiving

qualified immunity.

As this Court has noted, qualified immunity and dismissal on the pleadings

are often a “bad fit.” Meadows v. Coppick, No. 1:21-CV-322, 2022 WL 14752283, at *6

(S.D. Ohio Oct. 25, 2022) (citing Siefert v. Hamilton County, 951 F.3d 753, 761 (6th

Cir. 2020)). This is because “without more than the complaint to go on, the court

cannot fairly tell whether a case is obvious or squarely governed by precedent, making

qualified immunity inappropriate.” Siefert, 951 F.3d at 761 (cleaned up). But such a

preference is general, not absolute, see id., so the Court proceeds with its analysis.

Turning to the substance of Dotson and Dean’s qualified immunity defense,

the Court must first determine (1) whether Westbrook has plausibly alleged a

violation of his constitutional rights, and (2) whether that constitutional right was

clearly established. Pearson v. Callahan, 555 U.S. 223, 227 (2009). He has done both.

On Westbrook’s version of the facts, Jennings tased him while he was not

resisting arrest. The Sixth Circuit has repeatedly held that “the right to be free from

physical force when one is not resisting the police is a clearly established right.”

Wysong v. City of Heath, 260 F. App’x 848, 856 (6th Cir. 2008); see also Kijowski v.

City of Niles, 372 F. App’x 595, 601 (6th Cir. 2010). Specifically on point here, it is

clearly established in this Circuit that “an individual has a constitutional right not

to be tased when he or she is not actively resisting.”4 Browning v. Edmonson County,

18 F.4th 516, 525 (6th Cir. 2021).

4 The relevant events here occurred in 2019, and the Sixth Circuit did not issue Browning

until 2021. But the Browning court noted that the right of one not to be tased while not

actively resisting was clearly established “[c]ertainly by 2018.” See Browning, 18 F.4th at

525; see also Landis v. Baker, 297 F. App’x 453 (6th Cir. 2008) (holding that tasing a subdued

defendant repeatedly violated clearly established law in November 2004).

Recall, however, that there is no allegation that Dotson or Dean exerted

excessive force on Westbrook. After all, Jennings tased Westbrook, not them. (Doc. 1,

#4). But even without using excessive force on an inmate, an officer failing to prevent

the use of excessive force can be held liable if “the officer observed or had reason to

know that the excessive force would be or was being used and that the officer had

both the opportunity and the means to prevent the harm from occurring.” Wright v.

City of Euclid, 962 F.3d 852, 872 (6th Cir. 2020) (citation omitted). So the Court must

next determine whether Westbrook has adequately alleged those officers’

involvement in the constitutional violation alleged above. Westbrook alleges that

Dean “restrained” him during the tasing and that Dotson “aid[ed] and encourage[d]”

the tasing. (Id.).

The Defendants cite Smith v. City of Troy, 874 F.3d 938 (6th Cir. 2017), as a

reason Dean should not be liable. There, the Sixth Circuit held that no reasonable

juror could find that an officer had the “opportunity and means to prevent” an

excessive tasing because he “was occupied trying to gain control of [the Defendant’s]

arms while [the other officer] was deploying the taser.” Id. at 946.

On Westbrook’s version of the facts, however, this case differs from Smith. In

that case, the officer had taken Smith to the ground “to handcuff him and restrain

him forcibly.” Id. at 945. Thus, the officer was “occupied trying to gain control of

Smith’s arms.” Id. at 946. Here, Westbrook alleges that the officers came into the

apartment, grabbed him by the arms, and tased him without him resisting.

Presumably, nothing distracted Dean from telling Jennings not to tase Westbrook or

otherwise preventing the alleged excessive force, even if he held Westbrook’s arms

while Jennings tased Westbrook.

As for Dotson, the Defendants claim that Westbrook proffers “no other

allegations” except that Dotson “aided and encouraged the tasing.” (Doc. 5, #22). But

Westbrook does allege Dotson’s presence for the entire interaction. And presumably

Dotson, like Dean, could have stepped in to tell Jennings not to tase (or to stop tasing)

a non-resisting, detained Westbrook. See Goodwin v. City of Painesville, 781 F.3d 314,

328 (6th Cir. 2015). With only Westbrook’s version of the facts to go on, the Court

cannot say at this stage that Dean or Dotson could not have intervened to prevent

him from being tased while he was not resisting. The facts revealed as the case

proceeds may or may not change that analysis. But Dotson and Dean’s qualified

immunity defenses fail for now, and Westbrook’s claims against them for failure to

intervene to prevent excessive force may go on.

B. The State-Law Claims Fail As A Matter Of Law.

1. Intentional Infliction of Emotional Distress Claim

The Defendants next argue that the Court should dismiss Westbrook’s

intentional infliction of emotional distress claim. They believe this claim falls outside

the relevant statute of limitations and that Westbrook has not adequately stated a

claim for relief even if it did not. Westbrook, for his part, believes that the statute of

limitations has not yet run and that he has adequately pleaded the claim.

This claim and Westbrook’s negligent retention claim are state-law claims, and

this Court exercises only supplemental jurisdiction over them. So the Court applies

Ohio law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). For this claim,

Ohio law requires Westbrook to allege four things: “(1) defendants intended to cause

emotional distress, or knew or should have known that their actions would result in

plaintiff's serious emotional distress, (2) defendants’ conduct was extreme and

outrageous, (3) defendants’ actions proximately caused plaintiff's emotional injury,

and (4) plaintiff suffered serious emotional anguish.” Miller v. Currie, 50 F.3d 373,

377 (6th Cir. 1995).

The Court need not address the parties’ competing claims about whether the

statute of limitations has run because it is evident in Westbrook’s allegations that he

has not adequately alleged an intentional infliction of emotional distress claim.

Westbrook provides only conclusory allegations outfitted in words resembling the

relevant legal standard rather than specific facts that could give rise to a claim. See

United States v. Fowler, 819 F.3d 298, 309 (6th Cir. 2016) (“It is not sufficient for a

party to mention a possible argument in [a] skeletal way, leaving the court to put

flesh on its bones.” (quoting El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009)).

For example, he alleges that he suffered “emotional distress” and “mental anguish”

but offers no facts to support such a claim. And further, he contends that the officers’

conduct met the “extreme and outrageous” threshold without explaining how or why.

As the Court noted above, Dean merely restrained Westbrook after the officers

entered the apartment, and Dotson stood by. It is unclear to the Court that even

Jennings’ (potentially) wrongful tasing of Westbrook rises to “extreme and

outrageous” as required by Ohio law. But perhaps most importantly, Westbrook

provides no evidence of the emotional anguish he suffered because of the tasing. The

Complaint only makes the conclusory, unsubstantiated allegation that he sustained

some distress. (Doc. 1, #4, 6). Westbrook, then, has failed to show multiple of the

requisite elements of such a claim, and that claim fails.

2. Negligent Retention Claim

The Defendants finally ask the Court to dismiss Westbrook’s negligent

retention claim against the City both because such a claim cannot survive without

Westbrook’s intentional infliction of emotional distress claim and because Westbrook

provides no support for the claim in the first place.

The Defendants are correct that Ohio law requires that Westbrook establish a

predicate tort claim against one of the officers to make a colorable claim of negligent

retention against the City. See Minnich v. Cooper Farms, Inc., 39 F. App’x. 289, 296

(6th Cir. 2002); see also Myers v. Goodwill Indus. of Akron, Inc., 721 N.E.2d 130, 134

(Ohio Ct. App. 1998) (rejecting a negligent retention claim where the plaintiff did not

establish intentional infliction of emotional distress). And since the Court dismisses

Westbrook’s predicate claim, that one would not count. But presumably Westbrook’s

alleged constitutional torts against the officers, if proven, could count.

Even if Westbrook could show a predicate tort, however, his claim still fails.

Chapter 2744 of the Ohio Revised Code, entitled Political Subdivision Tort Liability,

provides municipal corporations broad immunity against claims for negligence,

including negligent retention. See, e.g., Bevelacqua v. Tancak, 204 N.E.3d 12, 26

(Ohio Ct. App. 2022) (“Although the [Ohio] Supreme Court did not have cause to

consider a claim of negligent retention in McConnell [v. Dudley, 144 N.E.3d 369

(2019)], its reasoning applies with equal force to Mr. Bevelacqua’s claim for the

same.”). So the City is shielded from liability under Ohio law. See Williams v.

Miniard, No. 1:22-cev-1, 2023 WL 1861445, at *14 (S.D. Ohio Feb. 9, 2023). Westbrook

has failed to plausibly allege that his claim here falls within any statutory exception

to that immunity, see Ohio Rev. Code § 2744.03, so his negligent retention claim fails.

CONCLUSION

Having addressed Westbrook’s various claims above, the Court GRANTS IN

PART the Defendants’ Motion to Dismiss (Doc. 5) as it relates to Westbrook’s official-

capacity claims and his state-law claims against the Defendants. The Court also

DENIES IN PART the Defendants’ Motion to Dismiss as it relates to Westbrook’s

individual-capacity Fourth Amendment claims against Dotson and Dean.

SO ORDERED.

March 31, 2023

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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