Estate of Keandre Bost v. Franklin County/Franklin County Board of Commissioners

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

- EASTERN DIVISION

The Estate of Keandre Bost,

Plaintiff, Case No. 2:22-cv-4476

Vv. Judge Michael H. Watson

Franklin County, ef a/., Magistrate Judge Deavers

Defendants.

OPINION AND ORDER

Armor Health of Ohio, LLC (“Defendant”) moves for judgment on the

pleadings on the Estate of Keandre Bost's (“Piaintiff’) Amended Complaint. Mot.,

ECF No. 51. For the following reasons, the Court GRANTS IN PART

Defendant's motion.

l. FACTS'

Plaintiff alleges the following. From September 23, 2021, to December 7,

2021, Keandre Bost (“Bost”) was a pretrial detainee at Franklin County

Corrections Center | (“FCCC I”). Am. Compl. J 1, ECF No. 46. Defendant was

the medical service provider for FCCC | during that time and “owned, operated,

maintained and supervised a healthcare facility within FCCC |.” /d. 25, 29.

Bost tragically hung himself in his jail cell on December 7, 2021, and died several

1 The Court accepts Defendant's factual allegations as true for Plaintiffs motion. See

Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).

days later. /d. 11. Additional allegations regarding his medical care are

addressed below.

ll. © STANDARD OF REVIEW

“A motion for judgment on the pleadings under Federal Rule of Civil

Procedure 12(c) generally follows the same rules as a motion to dismiss the

complaint under Rule 12(b\6).” Bates v. Green Farms Condo. Ass’n, 958 F.3d

470, 480 (6th Cir. 2020) (citing D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir.

2014)). “For purposes of a motion for judgment on the pleadings, all well-

pleaded material allegations of the pleadings of the opposing party must be taken

as true, and the motion may be granted only if the moving party is nevertheless

clearly entitled to judgment.” Fritz, 592 F.3d at 722 (citing JPMorgan Chase

Bank v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citations and

quotation marks omitted)).

As with a 12(b)(6) motion, a claim survives a motion for judgment on the

pleadings if it “contain[s] sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” /d. (quoting

Twombly, 550 U.S. at 556). This standard “calls for enough fact to raise a

reasonable expectation that discovery will reveal evidence of [unlawful conduct].”

Bell Ati. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A pleading’s “[flactual

Case No. 2:22-cv-4476 Page 2 of 11

allegations must be enough to raise a right to relief above the speculative level,

on the assumption that all the allegations in the [pleading] are true (even if

doubtful in fact).” /d. at 555 (internal citations omitted). The court “must construe

the complaint in the light most favorable to the [non-moving party.” Engler v.

Arnold, 862 F.3d 571, 574 (6th Cir. 2017). However, the non-moving party must

provide “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

lll. ANALYSIS

Plaintiffs Amended Complaint asserts multiple claims against multiple

parties, but only three claims apply to Defendant: (1) deliberate indifference to a

serious medica! need, pursuant to 42 U.S.C. § 1983 and Monell v. New York City

Dept. of Soc. Servs., 436 U.S. 658 (1978); (2) an Ohio survivorship claim; and

(3) an Ohio wrongful death claim.

As a preliminary matter, Plaintiff attempts to voluntarily dismiss without

prejudice the survivorship claim in its response to Defendant's motion. Resp. 14,

ECF No. 55 (“Plaintiff voluntarily dismisses its survivorship claim without

prejudice.”). Because Defendant has filed an Answer, however, ECF No. 48,

Plaintiff cannot unilaterally dismiss claims. See Fed. R. Civ. P. 41(a)(1)a)(i).

Nonetheless, the Court construes Plaintiff's response brief as a motion to dismiss

without prejudice. Defendant failed to timely reply to its motion for judgment on

the pleadings and, accordingly, did not oppose Plaintiffs request for dismissal

without prejudice. The Court GRANTS Plaintiffs motion and DISMISSES

Case No. 2:22-cv-4476 Page 3 of 11

WITHOUT PREJUDICE Plaintiff's state-law survivorship claim against

Defendant.

The Court thus now considers Plaintiff's deliberate indifference and

wrongful death claims.

A. Deliberate Indifference

Plaintiff alleges that certain unnamed medical staff employees were

deliberately indifferent to Bost’s serious medical needs and that Defendant is

liable for that deliberate indifference pursuant to Monell v. New York City Dept. of

Soc. Servs., 436 U.S. 658 (1978).

To state an underlying Fourteenth Amendment claim for deliberate

indifference to a pretrial detainee’s serious medical need, a plaintiff must

establish (1) that he “had a sufficiently serious medical need” and (2) that “each

defendant acted deliberately (not accidentally), and also recklessly in the face of

an unjustifiably high risk of harm that is either known or so obvious that it should

be known.” Helphenstine v. Lewis Cnty., 60 F.4th 305, 317 (6th Cir. 2023)

(cleaned up).

But, “{a] municipality? cannot be liable for the constitutional torts of its

employees; that is, it cannot be liable on a respondeat superior theory.” Powers

v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592, 607 (6th Cir. 2007) (citing

2 No party disputes, for purposes of the pending motion, that Defendant acted under

color of state law and can be held liable under the same standard that a municipality

would be held liable.

Case No. 2:22-cv-4476 Page 4 of 14

Monell, 436 U.S. at 691); Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 648 (6th

Cir. 2012) (“The occasional negligent administration of an otherwise sound policy

is not sufficient to impose municipal liability.” (internal citation omitted)).

Rather, under Moneil/ and its progeny, “[a] municipality or other local

government may be liable under [§ 1983] if the governmental body itself

‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’

to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting

Monell, 436 U.S. at 692). Thus, “[p]laintiffs who seek to impose liability on local

governments under § 1983 must prove that ‘action pursuant to official municipal

policy’ caused their injury.” /d. at 60-61 (quoting Monell, 436 U.S. at 691).

The Sixth Circuit recently explained the methods through which a plaintiff

can pursue municipal liability as follows:

There are four methods of proving a municipality’s illegal policy or

custom: the plaintiff may prove (1) the existence of an illegal official

policy or legislative enactment; (2) that an official with final decision

making authority ratified illegal actions; (3) the existence of a policy of

inadequate training or supervision; or (4) the existence of a custom of

tolerance or acquiescence of federal rights violations.

Wright v. City of Euclid, 962 F.3d 852, 880 (6th Cir. 2020) (internal quotation

marks and citations omitted). Under any of these theories, a plaintiff must show

that “through its deliberate conduct, the municipality was the ‘moving force’

behind the injury alleged.” Board of Cnty. Comm'rs of Bryan Cnity., v. Brown, 520

U.S. 397, 404 (1997). In other words, “to hold a municipality liable under § 1983,

a plaintiff must prove that the municipality's policy or custom caused the alleged

Case No. 2:22-cv-4476 Page 5 of 11

injury.” Ouza v. City of Dearborn Heights, 969 F.3d 265, 286 (6th Cir. 2020)

(internal quotation marks and citations omitted).

The Court first considers whether Plaintiff has alleged that someone

employed by Defendant was deliberately indifferent to his serious medical needs,

before considering whether Plaintiff has sufficiently alleged the existence of a

policy, custom, or practice.

Plaintiff has alleged the “sufficiently serious medical need” prong of a

deliberate indifference claim. Defendant agrees and argues solely that the

Amended Complaint does not adequately allege that any of its employees took a

deliberate act (or deliberately failed to act) and did so recklessly in the face of an

unjustifiably high risk of harm that was either known or so obvious that it should

be known. The Court agrees.

When the Amended Compiaint is distilled, it alleges the following vis-a-vis

the medical care Defendant's employees provided to Bost. Upon being booked

into FCCC | in September 2021, Bost alerted “staff” of his mental illness and prior

suicide attempts, and he told “staff” that he needed psychiatric treatment and

medicine. Am. Compl. J 36, ECF No. 46. Several people—who are not

defendants in this case and seem to have been corrections officers rather than

medical staff—repeatedly changed Bost's classification, gang affiliation, and cell

assignment to separate Bost from various other inmates or “due to space

issues.” /d. 38-46, 48.

Case No. 2:22-cv-4476 Page 6 of 11

In mid-October, Bost was transferred to the hospital with “Deputies Hale

and a nurse” and was admitted to the hospital. /¢. | 47. A notation in Bost'’s file

indicates he returned to the jail the next day and was to be “placed in a medical

single cell until cleared by medical.” /d. J] 49-50. Bost was noted as cleared to

return to general population three days later. /d. 51.

On November 9, 2021, Bost was rushed to the Emergency Room after he

tried to hang himself. /d. 52. While he was at the hospital, Chanel Caudill?

made a note in Plaintiffs file directing that he be placed on a safety watch upon

his return from the hospital. /d. 753. Bost was, indeed, placed on safety watch

upon his return. /d. 754. Then, a note was put in Bost’s file to remove him from

safety watch after he received an evaluation from mental health. /d. 55. Two

days later, Jason Oneto discharged Bost from safety watch and put him on

mental health evaluation (November 17, 2021). /d. 157. Mental health staff

authorized Bost’s removal from mental health observation two days after that

(November 19, 2021). /d. {[ 58.

On November 23, mental health staff permitted Bost to have jail clothes, a

mat, and a safety blanket, but he needed mental health observation and would

be housed in a medical cell. /d. 1 59. Bost was placed in a medical cell and kept

3 The Amended Complaint references myriad non-parties by name, including Chanel

Caudill and Jason Oneto, but contains virtually no explanation for who anyone is or

whether they were medical staff, a corrections officer, or was employed in some other

capacity.

Case No. 2:22-cv-4476 Page 7 of 11

under mental health observation but was released and transferred to general

population the next day. /d. JJ 61.

In general population, Bost continued fighting with other inmates, had to be

separated from certain inmates, and was sentenced—for various infractions—to

twenty-five days in disciplinary lockdown. /d. Jf 62-63.

At some point around the end of November 2021, Bost again went to a

hospital, but it is not clear when he went, and the Amended Complaint does not

state whether it was related to a mental health concern or a different medical

concern. /d. J 64.

By December 7, 2021, Bost was apparently back from the hospital and

back in general population on the eighth floor. See id. J] 65-66. Forty minutes

passed between the time Corrections Officers Withrow and Lucas did their final

headcount for the night and when Corrections Officer Coffey did his first

headcount for the night. /d. J] 67-68. Shortly after Corrections Officer Coffey

began his initial headcount, Bost was discovered hanging from his cell bars. /d.

1 69.

Plaintiff then summarizes the above allegations: “[b]y the time of his

second hanging and ultimate suicide, Mr. Bost had been moved over ten (10)

times; ... FCCC | staff had been instructed to keep Mr. Bost away from at least

twenty (20) inmates; ... Mr. Bost had amassed the following alerts: Safety

Watch; Mental Health Observation; Pending Disciplinary; SSI; Gang Affiliation;

Medical Housing; and Single Cell Housing; . . . Mr. Bost had been taken to the

Case No. 2:22-cv-4476 Page 8 of 11

hospital on at least three prior occasions, one of which was in response to a prior

suicide attempt... ..” /d. 71-74. He then alleges that “[m]edical staff

employed by Defendant Armor Health of Ohio repeatedly gave mental health

authorizations clearing Mr. Bost to return to general population despite his

consistent state of mental health crisis . . . [;] failed to offer or procure appropriate

intervention and precautions for Mr. Bost’s serious, immediate, and life-

threatening conditions.” /d. 76-77.

But, Plaintiff offers no facts to support his conclusion that Bost should not

have been cleared to return to general population during the periods listed

above, or that there were additional mental health treatments that should have

been provided. That is, the Amended Complaint alleges nothing more than the

dates Bost was put on (or taken off) mental health observation, evaluation, or

safety watch. For example, it alleges nothing concerning what was done by

medical staff during those periods, how Bost presented, or Bost’s condition upon

release by medical staff from any of those designations. Instead, Plaintiffs

theory seems to be that the very fact that Bost hanged himself, alone, suggests

Defendant and its medical staff must have been deliberately indifferent to Bost’s

serious mental health needs because Bost would not have suicided but for their

deliberate indifference. See id. § 84 (“The injuries suffered by Keandre Bost

were all preventable had Defendants not engaged in illegal conduct in violation of

his fundamental rights.”); see also Resp. 10, ECF No. 55 (“[P]aragraphs 35

through 81 [of the Amended Complaint] outline the illusory medical care rendered

Case No. 2:22-cv-4476 Page 9 of 11

toward Mr. Bost... .”). As Plaintiff fails to allege any action that medical staff

should have taken but did not, or any facts to support its theory that medical staff

should not have released Bost from a given period of mental health evaluation,

the Amended Complaint fails to show that any medical staff member “acted

recklessly in the face of an unjustifiably high risk of harm that is either known or

so obvious that it should be known.” Helphenstine, 60 F.4th at 317 (cleaned up).

Thus, the flat assertions that the provided medical care was “not enough’ fail to

state an underlying claim of deliberate indifference to support Mone? liability.

Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (“There can be no liability

under Monell without an underlying constitutional violation.” (citation omitted)).

So, the Court does not consider whether the Amended Complaint

adequately alleges the existence of a policy, custom, or practice for purposes of

Monell liability.

B. Wrongful Death

Defendant argues the Court should decline to exercise supplemental

jurisdiction over Plaintiff's state-law wrongful death claim. Mot. 12-13, ECF No.

51. Plaintiff responds that requiring him to litigate his claim against Defendant in

state court, while litigating his claims against the remaining defendants here,

could result in inconsistent verdicts and would waste judicial resources. Resp.

14-15, ECF No. 55.

In this case, the Court has not yet dismissed ail claims over which it may

exercise original jurisdiction; it has simply dismissed the claims against

Case No. 2:22-cv-4476 Page 10 of 11

Defendant over which it has original jurisdiction. The Court therefore defers

ruling on whether to exercise supplementai jurisdiction over Plaintiff's state-law

wrongful death claim against Defendant and will revisit the issue after ruling on

the correctional officer's pending motion for judgment on the pleadings, which is

not yet fully briefed.

IV. CONCLUSION

For the above reasons, Defendant's motion, ECF No. 51, is GRANTED IN

PART. The Court DISMISSES WITHOUT PREJUDICE Plaintiff's deliberate

indifference claim and state-law survivorship claim against Defendant. The Clerk

shall terminate ECF No. 51. )

IT IS SO ORDERED. fj | Ute

CHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

Case No. 2:22-cv-4476 Page 11 of 11