The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LEVESTER SMITH,
Plaintiff, Case No. 3:22-cv-203
vs.
SHERIFF ROB STRECK, et al., District Judge Michael J. Newman
Magistrate Judge Caroline H. Gentry
Defendants.
____________________________________________________________________________
ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS (Doc. No. 11); (2) DISMISSING ALL COUNTS AGAINST
DEFENDANTS MEAD, DELL, O’DANIEL, LEE, AND EATON; (3) DISMISSING
COUNT III OF THE AMENDED COMPLAINT; AND (4) PERMITTING THE CASE TO
PROCEED REGARDING THE FOLLOWING CLAIMS: COUNTS I AND II
ALLEGING EXCESSIVE FORCE AND ASSAULT AND BATTERY AGAINST
DEFENDANT STRECK
______________________________________________________________________________
This is a civil case in which Plaintiff Levester Smith seeks relief for alleged constitutional
violations. See Doc. Nos. 1, 7. Plaintiff’s first complaint was filed with the assistance of counsel.
See Doc. No. 1. Sometime thereafter, Plaintiff’s counsel passed away. See Doc. No. 2. Plaintiff,
now proceeding pro se1, filed an amended complaint. Doc. No. 7. All Defendants – Montgomery
County Sheriff Rob Streck, Officer David Mead, Officer Christopher Dell, Officer Zachary
O’Daniel, Officer Jordan Lee, and Sergeant Craig Eaton – filed a joint motion to dismiss pursuant
1 The Court accepts a pro se plaintiff’s allegations as true and “construe[s] filings by pro se litigants
liberally.” Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006) (citing Spotts v. United States, 429 F.3d
248, 250 (6th Cir. 2005)). However, while pro se pleadings are “liberally construed” and “held to less
formal standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam), pro se plaintiffs must still satisfy basic pleading requirements. See Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010).
to Fed. R. Civ. P. 12(b)(6).2 Doc. No. 11. Plaintiff filed a pro se memorandum in opposition
(Doc. No. 13), and Defendants replied (Doc. No. 14). Thus, the motion is ripe for review.
I. Background
The following facts are taken as true as alleged in the amended complaint, the operative
pleading for deciding this motion. Doc. No. 7. On July 28, 2020, Plaintiff was in custody at the
Montgomery County Jail. Id. at PageID 19. Plaintiff then wore several rings on his fingers. Id.
Unidentified “police officer [D]efendants” attempted to remove the rings from Plaintiff’s fingers
but were having difficulty doing so. Id. Plaintiff asked for permission to remove the rings himself.
Id. at PageID 20. The officers refused and continued trying to remove the rings, causing Plaintiff
pain and discomfort. Id. Eventually, the officers forced Plaintiff to the ground and Plaintiff’s face
began bleeding. Id. He was offered a napkin to stop the bleeding, but no other assistance was
provided. Id. Plaintiff was eventually allowed to remove his rings without interference. Id. at
PageID 21.
Notably, Plaintiff had surgery on his groin area “only days before” this incident, which
exacerbated his preexisting pain from that surgery. Id. at PageID 20. Shortly after being released
from incarceration, Plaintiff sought medical treatment for these injuries. Id. at PageID 21. He
filed this lawsuit on July 28, 2022. See Doc. No. 1.
II. Legal Standard
Rule 12(b)(6), like all other Federal Rules of Civil Procedure, “should be construed,
administered, and employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1. A motion to dismiss filed
pursuant to Rule 12 (b)(6) operates to test the sufficiency of the complaint and permits dismissal
2 The motion to dismiss concerns just the timeliness and plausibility of Plaintiff’s pro se claims, not other
issues such as qualified immunity.
for “failure to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion,
a plaintiff must satisfy the basic pleading requirements set forth in Rule 8(a). Under Rule 8(a)(2),
a complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.”
A complaint will not suffice if it offers only “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement
to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). In considering whether the facial plausibility
standard is met, the court must view the complaint in the light most favorable to the plaintiff,
accepting as true all allegations in the complaint and drawing all reasonable inferences in the
plaintiff’s favor. See, e.g., Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017).
III. Analysis
A. Statute of Limitations as to Counts I and II
Defendants argue Counts I and II of the amended complaint against Defendants Mead,
Dell, O’Daniel, Lee, and Eaton should be dismissed because they were alleged against these
Defendants after the applicable statute of limitations periods expired. Doc. No. 11 at PageID 52.
Count I alleges an excessive force claim under 42 U.S.C. § 1983 and Count II alleges a state law
claim of assault and battery. See Doc. No. 7 at PageID 22. Both claims originate from the incident
that occurred on July 28, 2020 at the Montgomery County Jail. Doc. No. 7 at PageID 19-22. The
amended complaint was filed on July 11, 2023. See Doc. No. 7. This was the first time Defendants
Mead, Dell, O’Daniel, Lee, and Eaton had been named as such; previously, Plaintiff filed his
complaint against unidentified John/Jane Doe Officers One, Two, Three, and Four, in addition to
Defendants Streck and Montgomery County. See Doc. Nos. 7, 1.
First, the Court must determine the applicable statute of limitations for each claim. For
Count I, § 1983 claims arising in Ohio are subject to the State’s general personal injury statute of
limitations pursuant to Ohio Rev. Code § 2305.10, which requires suits be filed within two years
of accrual. Browning v. Pendleton, 869 F.2d 989, 991-92 (6th Cir. 1989). While the statute of
limitations period generally is governed by state law, the accrual date of a § 1983 action is a
question of federal law. Wallace v. Kato, 594 U.S. 384, 388 (2007). A § 1983 excessive force
claim accrues the same day the alleged excessive force is used. Hodge v. City of Elyria, 126 F.
App’x 222, 224 (6th Cir. 2005)). For Count II, Plaintiff’s claim under Ohio law for assault and
battery is “one year after the date on which the assault or battery occurred.” Jordan v. Howard,
No. 29190, 2021 WL 5275974, at *4 (Ohio App. 2d Dist. Montgomery, 2021) (citing Ohio Rev.
Code Ann. § 2305.111(B)(1))). Accordingly, Plaintiff’s excessive force claim alleged in Count I
was subject to a statute of limitations period of one year, and his assault and battery claim as
alleged in Count II was subject to a statute of limitations period of two years, both of which accrued
on July 28, 2020, the date of the alleged incident.
Additionally, the doctrine of “relation back” under Fed. R. Civ. P. 15 is inapplicable when
a plaintiff adds “new, previously unknown defendants in place of ‘John Doe’ defendants” because
that “is considered a change in parties, not a mere substitution of parties,” and “such amendments
do not satisfy the ‘mistaken identity’ requirement of Rule 15(c).” Smith v. City of Akron, 476 F.
App’x 67, 69 (6th Cir. 2012) (internal citations omitted).
Plaintiff’s claims against Defendants Mead, Dell, O’Daniel, Lee, and Eaton are time-barred
and should be dismissed. The statute of limitations for the § 1983 excessive force claim expired
July 28, 2022 – two years after the incident occurred on July 28, 2020. The statute of limitations
for the assault and battery claim expired on July 28, 2021 – one year after the incident occurred.
Because these defendants were not named as such—or had reason to believe they would be named
as such—until July 11, 2023, the claims against them must be dismissed. See City of Akron, 476
F. App’x at 69 (citing Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996)).
B. Failure to State a Claim Upon Which Relief can be Granted as to Counts I
and II Against Defendant Streck
Having carefully and thoroughly considered the pleadings and briefing in support of, and
in opposition to, Defendants’ motion as it relates to Counts I and II alleged against Defendant
Streck, along with the procedural posture of this case, the efficient and appropriate way forward is
to permit discovery to occur and consider the parties’ arguments on summary judgment, not earlier
at the motion-to-dismiss phase of litigation. See, e.g., Meriwether v. Hartop, 992 F.3d 492, 514
(6th Cir. 2021). Proceeding in this manner will ensure that the Court reviews these arguments
only after appropriate discovery has been completed and will guarantee that the Court’s
consideration of the parties’ arguments is not premature. Id.; cf. Humphreys v. Bank of Am., 557
F. App’x 416, 422 (6th Cir. 2014); Grose v. Caruso, 284 F. App’x 279, 284 (6th Cir. 2008)
(Gibbons, J., concurring); Nuchols v. Berrong, 141 F. App’x 451, 453 (6th Cir. 2005); LRL Prop.
v. Portage Metro Hous. Auth., 55 F.3d 1097, 1113 (6th Cir. 1995) (Jones, J., dissenting). Because
there is a timely-filed, plausible claim upon which relief can be granted as to Defendant Streck,
Counts I and II should not be dismissed against him.
C. Count III of the Amended Complaint
Defendants finally argue that Count III should be dismissed under Fed. R. Civ. P. 12(b)(6).
In Count III, Plaintiff alleges a § 1983 municipal liability violation against Defendant Streck,
claiming that Montgomery County inadequately trained and supervised its officers. Doc. No. 7 at
PageID 22, ¶ 32. Defendants argue that this allegation, without more details regarding a specific
policy, practice, or training inadequacy attributable both to the alleged incident and the
Montgomery County Jail or the Montgomery County Sheriff’s Office generally, does not suffice
to state an actionable claim. Doc. No. 11 at PageID 55.
To survive a motion to dismiss, a § 1983 claim alleging inadequate training and supervision
of employees requires the plaintiff to demonstrate that a municipality acted with “deliberate
indifference,” i.e., the “municipality was aware of prior unconstitutional actions of its employees
and failed to respond.” Barrett v. Wallace, 107 F. Supp. 949, 955 (S.D. Ohio 2000) (citing City of
Canton v. Harris, 489 U.S. 378, 390-91 (1989)). This generally requires a showing of a specific
“policy or custom” that violates a constitutional right; a conclusory allegation is not sufficient. Id.
(citing Taylor v. Canton Ohio Police Dep’t, 544 F. Supp. 783, 788 (N.D. Ohio 1982)).
Here, Plaintiff’s amended complaint does not allege a specific policy, practice, or custom
of Montgomery County, its jail, or its police department that contributed to a violation of any of
Plaintiff’s constitutional rights. The amended complaint only states that:
It was the policy and/or the custom of [] the county of Montgomery
to inadequately supervise and train its officers including the
Defendant Officers, thereby failing to discourage further
constitutional violations on the part of its Officers. The county did
not require appropriate in-service training or re-training of its
Officers who were known to have engaged in police
misconduct…As a result of the [previously] described policies and
customs, police officers of Montgomery County, Ohio, believed that
actions would not be properly monitored by supervisory officers and
that misconduct would not be investigated or sanctioned, but would
be tolerated.
Doc. No. 7 at PageID 22, ¶¶ 32-33. This amounts only to a conclusory allegation and does not
meet the standard established by precedent that a Plaintiff must meet to survive a motion to dismiss
on a § 1983 claim for inadequate training and supervision. See generally Barrett, 107 F. Supp.
949. An umbrella statement of alleged unconstitutional practices, without more, cannot move
forward as a pleading that states a plausible claim for which relief can be granted. See id.
Accordingly, Count III is dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Moreover, the pro se
complaint is deficient in that Montgomery County is not named as a Defendant.
IV. Conclusion
Based upon the foregoing, Defendants’ motion is GRANTED IN PART and DENIED IN
PART. Doc. No. 11. All claims against Defendants Mead, Dell, O’Daniel, Lee, and Eaton, are
DISMISSED. The municipal liability claim against Defendant Streck is DISMISSED. Plaintiff
may pursue only his excessive force and state law assault and battery claims against Defendant
Streck. The Court shall issue an order requiring the parties to meet and confer, pursuant to Fed.
R. Civ. P. 16, by separate entry. Discovery shall proceed forthwith.
IT IS SO ORDERED.
Date: March 4, 2024 s/Michael J. Newman
Hon. Michael J. Newman
United States District Judge