Spencer v. Jordan

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERMAINE SPENCER, Case No. 1:22-cv-557

Plaintiff,

Cole, J.

vs Bowman, M.J.

WES JORDAN, et al.,

Defendants.

REPORT AND RECOMMENDATION

This civil action is now before the court on Defendants’ Annette Chambers-Smith

and Ronald Erdos motion to dismiss Plaintiff’s claims asserted against them pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can

be granted. (Doc. 10) and the parties’ responsive memoranda. (Docs. 13, 14).

I. Background and Facts

Plaintiff Jermaine Spencer is an inmate currently incarcerated at Toledo

Correctional Institution. At all times relevant to the complaint, Plaintiff was an inmate at

Southern Ohio Correctional Facility (“SOCF”) in Scioto County, Ohio. On September 26,

2022, Plaintiff filed the present complaint (Doc. 1), naming as Defendants Wes Jordan,

FNU Adkins, John Doe 1, John/Jane Doe 2-5, Warden Ronald Erdos, and Director

Annette Chambers-Smith. To date, only Defendants Erdos and Chambers-Smith have

been served. The incident at central issue in Plaintiff’s complaint is an alleged use of

force by Defendants Jordan and Adkins, yet to be served, against Plaintiff on October 2,

2020. The only cause of action asserted against Defendants Erdos and Chambers-Smith

is a 42 U.S.C. §1983 Failure to Train and Supervise Staff claim. (Doc. 1, p. 9). Plaintiff

asserts that Defendant Erdos and Chambers-Smiths’ alleged failure to train or supervise

staff amounts to deliberate indifference in violation of Plaintiff’s constitutional rights.

II. Analysis

A. Standard of Review

Motions to dismiss under Rule 12(b)(1) can assert either facial attacks or factual

attacks on a court's subject matter jurisdiction. Ohio Nat'l Life Ins. Co. v. United States,

922 F.2d 320, 325 (6th Cir. 1990). Where a facial attack on the subject matter jurisdiction

alleged by the complaint is made, the moving party merely questions the sufficiency of

the pleading. Id. In reviewing such a facial attack, a trial court takes the allegations in the

complaint as true. Id. On the other hand, when a court reviews a complaint under a factual

attack, no presumptive truthfulness applies to the factual allegations. Id. The court must

“weigh the conflicting evidence to arrive at the factual predicate that subject matter

jurisdiction exists or does not exist.” Id.

A motion to dismiss based on subject matter jurisdiction generally must be

considered before a motion brought under Rule 12(b)(6) for failure to state a claim upon

which relief can be granted. Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 592

(S.D. Ohio 2002) (citing Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269

(6th Cir. 1990)) (explaining that a Rule 12(b)(6) challenge becomes moot if the court lacks

subject matter jurisdiction).

Furthermore, rule 8(a)(2) of the Federal Rules of Civil Procedure requires a

complaint to set forth “a short and plain statement of the claim showing that the pleader

is entitled to relief.” In reviewing a complaint, the Court must construe it in Plaintiff’s favor,

accept all well-pleaded factual allegations as true, and evaluate whether it contains

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of

the claims. The court is required to construe the complaint in the light most favorable to

the Plaintiff, and accept all well-pleaded factual allegations in the complaint as true. See

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB Business Services, 135

F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept conclusions of law or

unwarranted inferences which are presented as factual allegations. Blackburn v. Fisk

University, 443 F.2d 121, 124 (6th Cir. 1974). A complaint must contain either direct or

reasonable inferential allegations that support all material elements necessary to sustain

a recovery under some viable legal theory. Lewis v. ACB, 135 F.3d at 405 (internal

citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (citations omitted); Association of Cleveland Fire Fighters v. City of

Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). Even though a complaint need not

contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a

right to relief above the speculative level on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Id. (citations omitted).

B Defendants’ motion to dismiss

Defendants contend that Count Four of Plaintiff’s complaint is properly dismissed

because he fails to allege sufficient personal involvement by Defendants Erdos and

Chambers-Smith to establish liability under 42 U.S.C. §1983. Defendants also asserts

that Plaintiff’s claims against them are barred by the Eleventh Amendment. Additionally,

Defendants contend that they are entitled to qualified immunity. Defendants contentions

are well-taken.

1. Eleventh Amendment

Defendants contend that Plaintiff’s official capacity claims against Defendants are

barred by the Eleventh Amendment, as are any claims the Plaintiff may attempt to assert

against the State of Ohio and the Ohio Department of Rehabilitation and Correction.

Notably, absent an express waiver, a state is immune from damage suits under

the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139

(1993); Edelman v. Jordan, 415 U.S. 651 (1974). The State of Ohio has not

constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal

courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio

v. Madeline Marie Nursing Homes, 694 F.2d 449 (6th Cir. 1982).

The Eleventh Amendment bar extends to actions where the state is not a named

party, but where the action is essentially one for the recovery of money from the state.

Edelman, 415 U.S. at 663; Ford Motor Company v. Dept. of Treasury, 323 U.S. 459, 464

(1945). A suit against a defendant in his official capacity would, in reality, be a way of

pleading the action against the entity of which a defendant is an agent. Monell, 436 U.S.

at 690. Thus, actions against state officials in their official capacities are included in this

bar. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes,

416 U.S. 232 (1974). See also Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing

Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009)) (“[A]n official-capacity suit against

a state official is deemed to be a suit against the state and is thus barred by the Eleventh

Amendment, absent a waiver.” (citation and ellipsis omitted)).

Here, Defendants Erdos and Chambers-Smith are named as officials or

employees of ODRC or SOCF, and are state officials or employees. (Doc. 1). Thus, the

claims for monetary damages against them in their official capacities are barred by the

Eleventh Amendment.

2. Plaintiff fails to state a Section 1983 claim against Defendants

Count Four of Plaintiff’s complaint alleges that Defendants Erdos and Chambers-

Smith were responsible and duty-bound to sufficiently train and supervise the employees

of the SOCF and ODRC to avoid the use of excessive force. (Doc. 1 at 55). The complaint

further alleges that Defendants Erdos and Chambers-Smith have knowingly failed, either

sufficiently or at all, to hire, train, or supervise staff in connection with the use of force, to

properly investigate allegations of excessive force, to establish and implement policy and

procedures calculated to prevent the use of excessive force, or to otherwise ensure the

safety and security of prisoners in their custody and control against the use of excessive

force. (Id. at 56).

Defendants argue that Plaintiff’s claim against them for failure to train or supervise

fails to state a claim for relief under 1983 because Plaintiff’s fails to allege sufficient

personal involvement by Defendants Erdos and Chambers-Smith.

To state a cognizable claim against an individual under § 1983, “a plaintiff must

set forth facts that, when construed favorably, establish (1) the deprivation of a right

secured by the Constitution or laws of the United States (2) caused by a person acting

under color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.

2006).

Here, Defendants contend that Plaintiff’s Complaint does not contain any factual

allegations establishing Defendants Erdos or Chambers-Smiths’ direct involvement in the

alleged misconduct. (See Doc. 1, pp.9-10).

Plaintiff, however, argues that paragraphs 40 through 43 of the complaint show

that Defendants’ Chambers-Smith and Erdos were or should have been on notice of

Plaintiff’s prior lawsuit against SOCF based on excessive force by correctional staff.

Notably, Plaintiff’s complaint states, in pertinent part:

Plaintiff’s Prior Lawsuit against SOCF – Spencer v. Morgan

40. At all times relevant hereto, Defendants were aware and on

notice, or should have been aware, of Plaintiff’s history of unfettered abuse

at the hands of SOCF staff.

41. In 2014, Plaintiff filed a complaint pursuant to 42 U.S.C §1983

wherein he alleged excessive force against several SOCF employees. See

Spencer v. Morgan, Southern District of Ohio, case no. 1:14-cv-696.

42. The facts of Plaintiff’s prior lawsuit are eerily similar to the facts

of the 2020 incident, such that these are not isolated incidents but a pattern

of behavior that runs rampant in SOCF correctional staff.

43. After conducting discovery and depositions, the litigation in

Spencer v. Morgan resulted in a settlement.

(Doc. 1, ¶¶40-43).

In light of the foregoing, Plaintiff claims that based on the facts set forth regarding

the previous incident with Plaintiff and SOCF correctional staff, there is “a reasonable

expectation that discovery will reveal evidence” regarding Plaintiff’s claims against

Defendants Chambers-Smith and Erdos as stated in Twombly. Plaintiff’s contentions are

not well taken.

As noted by Defendants, Defendant Chambers-Smith and Erdos were not parties

to the previous lawsuit. Namely, the suit originated prior to Defendant Chambers-Smith’s

tenure as Director, and Defendant Erdos’s tenure as Warden of SOCF. Further, as

outlined in Plaintiff’s complaint, that case was settled, but Plaintiff has not attached the

settlement agreement. (Doc. 1, p. 8). In this regard, Defendants assert that Plaintiff fails

to properly allege that Defendants Erdos and Chambers-Smith were personally aware of

the incident in question. As such, Defendants argue that Plaintiff has not stated a claim

against him on which relief can be granted in this regard. See, e.g., Heyerman v. Cty. of

Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (“Persons sued in their individual capacities

under § 1983 can be held liable based only on their own unconstitutional behavior.”); see

also Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991) (personal liability “must be

based on the actions of that defendant in the situation that the defendant faced, and not

based on any problems caused by the errors of others, either defendants or non-

defendants”). The undersigned agrees.

Additionally, Section 1983 liability cannot be premised solely on a theory of

respondeat superior. Hays v. Jefferson Cty., 668 F.2d 869, 872 (6th Cir. 1982).

Supervisory officials are not liable in their individual capacities unless they “either

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.” (Id. at 874). A supervisor cannot be held liable “simply because he or she was

charged with overseeing a subordinate who violated the constitutional rights of another”

and “a mere failure to act will not suffice to establish supervisory liability.” Peatross v. City

of Memphis, 818 F.3d 233, 241 (6th Cir. 2018); see also Essex v. Cty. of Livingston, 518

F. App'x 351, 357 (6th Cir. 2013) (“There must be some conduct on the supervisor's part

to which the plaintiff can point that is directly correlated with the plaintiff's injury.”).

Supervisory liability requires some “active unconstitutional behavior” on the part of the

supervisor. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999); see also Hays, 668

F.2d at 873-74 (“mere failure to act (even) in the face of a statistical pattern of incidents

of misconduct” is not sufficient to confer liability) (internal quotation marks omitted).

Further, the Sixth Circuit has found that – without such personal involvement – an

attempt to hold an officer liable in his individual capacity for his “alleged failure to

adequately train employees ... ‘improperly conflates a § 1983 claim of individual

supervisory liability with one of municipal liability.’” Harvey v. Campbell Cty., 453 F. App'x

557, 563 (6th Cir. 2011) (quoting Phillips v. Roane Cty., 534 F.3d 531, 543 (6th Cir.

2008)); see also Heyerman, 680 F.3d at 646-48 (finding that absent evidence of personal

involvement in the alleged underlying misconduct, the defendant county official could not

be individually liable based on her failure to train or supervise). Thus, absent personal

involvement, a failure-to-train claim against an individual official is properly deemed to be

brought against them in their official capacity, and treated as a claim against the

municipality. See Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir. 2005).

Here, Plaintiff alleges that Defendants Chambers-Smith and Erdos had a duty to

train its correctional staff to avoid the use of excessive force. (Doc. 1, ¶55) Based on the

physical and psychological injuries Plaintiff suffered, Plaintiff alleges that Defendants

Chambers-Smith and Erdos have knowingly failed to hire, train and supervise their

correctional staff in connection with the use of force, to properly investigate allegations of

excessive force, to establish and implement policies and procedures calculated to prevent

the use of excessive force, or to otherwise ensure the safety and security of prisoners in

their custody and control against the use of excessive force. Id. at ¶ 56-60. As such,

Plaintiff contends that he has properly stated a claim for supervisory liability. See

Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir.2016) (“where an official's

execution of his or her job function causes injury to the plaintiff, the official may be liable

under the supervisory-liability theory.”)

Plaintiff further contends that this case is factually similar to that of Coley v. Lucas

City, 799 F.3d 530 (6th Cir. 2015). In Coley, a pretrial detainee died while in police custody

and his family filed suit against two officers and their supervisor. Id. at 534-535. While in

police custody, one of the officers put the decedent into a chokehold that caused him to

lose consciousness leading to his death, which was later ruled a homicide. Id. The

decedent’s family sought to hold the sheriff personally liable for the conduct of his officers.

Id. at 541. The decedent’s family alleged that the sheriff had a duty to train and supervise

the officers to avoid the use of excessive force, that the sheriff failed to train and supervise

the officers properly, and the sheriff failed to investigate allegations of excessive force

properly. Id. at 541-542. The Sixth Circuit Court of Appeals held that the family’s

allegations were “sufficient to show” that the sheriff “at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct of” his subordinates.

Id. at 542.

In light of the foregoing, Plaintiff argues that Defendant Erdos and Chambers-

Smith’s alleged failure to train is in deliberate indifference to the constitutional rights and

protections of prisoners like Plaintiff. Plaintiff’s arguments are unavailing.

Here, the allegations in this case fall far short of those deemed sufficient to state

a claim for supervisory liability in Coley and Peatross. Notably, in Coley, the court relied

on the following allegations: (1) the sheriff had generally failed to train and supervise his

employees regarding the use of chokeholds and injuries that might result; (2) the sheriff

had failed to properly investigate excessive force allegations; (3) the sheriff had “full

knowledge” of the specific assault at issue; and (4) the sheriff “intentionally and

deliberately made false statements to federal officials about [his] knowledge of” that

assault and the subordinates' subsequent failure to provide medical attention, in an effort

to cover up the subordinates' behavior. Sweat v. Sanders, No. 5:18-CV-557-REW, 2019

WL 3240018, at *6 (E.D. Ky. July 17, 2019) citing Coley, 799 F.3d at 542.

Similarly, in Peatross the court relied on a showing that: (1) the director generally

failed to supervise and train the officers to avoid the use of excessive force or use such

force properly; (2) the director failed to investigate the incident properly; (3) the director

“attempted to cover-up the unconstitutional conduct of his subordinates by exonerating

the officers in an effort to escape liability”; and—perhaps most critically—(4) after a public

admonishment from the mayor, as a result of the staggering number of police shootings

in recent years, the director “acknowledged a dire need to review and improve the police

department's operations” and the officer disciplinary process, yet had taken absolutely no

action since that time. Peatross, 818 F.3d at 243. Given these considerations, the court

found that the director “‘at a minimum, knowingly acquiesced’ in the unconstitutional

conduct of his subordinates through the execution of his job functions.” Id. at 244 (quoting

Coley, 799 F.3d at 542).

Here, as noted by Defendants, Plaintiff’s complaint fails to point to any specific

conduct or actions by Defendants Chambers-Smith and Erdos, nor does Plaintiff allege

that Defendants were even aware of the specific incident in question. Plaintiff’s

unsupported conclusory allegations that the actions of Defendants Erdos and Chambers-

Smith violated his constitutional rights solely based on their supervisory roles, fails to state

a claim for relief.

3. Qualified Immunity

The doctrine of qualified immunity protects government officials from liability for

civil damages insofar as their conduct does not violate clearly established law of which a

reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Government officials are ‘entitled to qualified immunity [if] their decision was reasonable,

even if mistaken.” Hunter v. Bryant, 502 U.S. 224, 229 (1991). Qualified immunity

“provides ample protection to all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 341, (1986). Qualified immunity is judged

by making two inquiries (in either order). First, viewing the facts in a light most favorable

to the Plaintiff, whether the Plaintiff have shown that a constitutional violation has

occurred. Second, whether the right was clearly established at the time of the violation.

Pearson v. Callahan, 555 U.S. 223 (2009). In other words, the Court determines whether

the plaintiff has alleged sufficient facts, and supported the allegations by sufficient

evidence, to indicate that what the official allegedly did was objectively unreasonable in

light of the clearly established constitutional rights. Dickerson v. McClellan, 101 F.3d

1151, 1157-58 (6th Cir. 1996).

Here, Plaintiff has failed to establish that Defendants Erdos and Chambers-Smith

violated Plaintiff’s constitutional rights. Accordingly, Defendants Erdos and Chambers-

Smith are entitled to qualified immunity.

III. CONCLUSION

In light of the foregoing, IT IS RECOMMENDED THAT Defendants Erdos and

Chambers-Smith motion to dismiss count Four of Plaintiff’s complaint (Doc. 10) be

GRANTED, and Plaintiff’s claims against Defendants Erdos and Chambers-Smith be

DISMISSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERMAINE SPENCER, Case No. 1:22-cv-557

Plaintiff,

Cole, J.

vs Bowman, M.J.

WES JORDAN, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).