# Colbert v. Cuyahoga County Board of Commissioners

> District Court, N.D. Ohio · September 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10664691

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10664691

## How later opinions describe it (automated extraction)

- noting that “[p]ersons sued in their individual capacities under § 1983 can be held liable based only on their own unconstitutional behavior”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANIEL COLBERT, as Brother and ) CASE 1:23 CV 1414
Administrator of Estate of Decedent )
Nicholas Michael Colbert, )
Plaintiff,
v. JUDGE DONALD C. NUGENT
CUYAHOGA COUNTY, OHIO, et al.,
Defendants. MEMORANDUM OPINION

This Matter is before the Court on the Motion for Partial Judgment on the Pleadings filed
by Defendants, Cuyahoga County, Armond Budish, Earl Leiken, Kenneth Mills, Eric J. Ivey,
James Lee Johnson, Robert Head, Andre Averyheart and Antonio Brunello (“the Cuyahoga
County Defendants”). (Docket #34.)
Factual and Procedural Background
On May 10, 2019, Nicholas Colbert committed suicide while in custody at the Cuyahoga
County Jail. Plaintiff alleges that Defendants were aware of Nicholas Colbert’s recent suicide
attempt and knew that Nicholas Colbert was withdrawing from multiple substances when
initially evaluated at the Jail, yet he was not provided necessary screening, medical care or
attention at the time of booking and/or while in custody. (Complaint at Paragraphs 27-32.)

After being booked into the jail, Nicholas Colbert was initially held in a general
population pod before being moved to a Veteran’s Pod — an area of the jail designated for pre-
trial detainees and/or inmates who have a history of military service. (Complaint at Paragraphs
39 and 42.) Plaintiff states that despite the obvious risk involved given Nicholas Colbert’s
history of suicide/self harm, and the fact that he was either under the influence and/or
withdrawing from illegal substances, Nicholas Colbert was permitted to maintain possession of
the string from the hood of his sweatshirt,’ which was “of such length and substance that it could
be used for self-harm.” (Complaint at Paragraphs 33-35.) He later tied the string to the end of
the bunk in his cell and hung himself. (Complaint at Paragraph 49.)
Plaintiff alleges Nicholas Colbert received no medical care while in custody and that
Nicholas Colbert was ignored by jail staff who were not at their assigned stations; did not make
required rounds; and, falsified documents indicating they were checking on inmates/detainees
when they were not. (Complaint at Paragraphs 45-46.) Plaintiff alleges Nicholas Colbert’s death
was the result of these failures, as well as documented deficiencies in the policies and operation
of the County Jail on a broader scale.
On May 10, 2021, Nicholas Colbert’s brother Daniel Colbert, as Administrator of
Nicholas Colbert’s Estate, filed a lawsuit in the Cuyahoga County Court of Common Pleas, Case
No. CV 21 947395. That lawsuit was removed to Federal Court on June 10, 2021, Case No. 21
CV 1161, and voluntarily dismissed without prejudice on August 4, 2022.
While being booked, Nicholas Colbert was recorded on surveillance video
removing the string from the hood of his sweatshirt and tying it around his waist to hold
up his pants. (Complaint at Paragraphs 33-34.) Thereafter, he wrapped the string around
his waist on the outside of his pants, where Plaintiff alleges it was objectively observable.
(Complaint at Paragraph 25.)
2.

On July 22, 2023, Daniel Colbert (“Plaintiff”), filed the instant Complaint, as Brother and
Administrator of the Estate of Nicholas Colbert, naming Cuyahoga County, MetroHealth and
multiple individuals, in their individual and/or official capacities, as Defendants. Plaintiff raises
the following claims:
First Cause of Action: 42 U.S.C. § 1983 for Deliberate Indifference to Serious
Medical Needs in Violation of the Eighth and/or Fourteenth
and/or Fourth Amendment against all Defendants;
Second Cause of Action: 42 U.S.C. § 1983 Supervisory Liability against Defendants
Budish, Leiken, Mills, Ivey, Tallman, Brunello, Zitello,
Chute, MetroHealth and Cuyahoga County, along with
several John Doe Defendants..
Third Cause of Action: Willful, Wanton, Reckless, Malicious, and Bad Faith
Conduct against all Defendants.
Fourth Cause of Action: Intentional Infliction of Emotional Distress against all
Defendants;
Fifth Cause of Action: Negligent Hiring, Training, Retention, Discipline, and
Supervision against Defendants Budish, Leiken, Mills,
Ivey, Tallman, Brunello, Zitiello, Chute and Cuyahoga
County, along with several John Doe Defendants;
Sixth Cause of Action: Failure to Intervene against all Defendants;
Seventh Cause of Action: Wrongful Death against all Defendants;
Eighth Cause of Action: Survivorship against all Defendants;
Ninth Cause of Action: Fifth and Fourteenth Amendment Due Process against all
Defendants;
Tenth Cause of Action: Americans with Disabilities Act and Rehabilitation Act
Claim against all Defendants;
Eleventh Cause of Action: | Medical Malpractice against all Defendants;
Twelfth Cause of Action: 42 U.S.C. § 1983 Monell Claim Against Defendants
Cuyahoga County and/or MetroHealth;

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Thirteenth Cause of Action: Vicarious Liability/Respondeat Superior against Defendant
MetroHealth.
On June 26, 2024, the Cuyahoga County Defendants filed their Motion for Judgment on
the Pleadings.’ (Docket #34.) The Cuyahoga County Defendants argue as follows:
1. All claims brought against Defendants Budish, Leiken, Ivey, Brown,
Johnson, Head, Mills, Averyheart and Brunello in their official capacity
are claims brought against Cuyahoga County and must be dismissed as
redundant.
De Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 against Defendants
Budish, Leiken, Ivey and Brunello in their individual capacities must be
dismissed due to lack of personal involvement with the incident that forms
the basis of the Complaint and they are entitled to qualified immunity.
3. Plaintiff has failed to allege sufficient facts to state a claim under the
Americans with Disabilities Act (“ADA”) or the Rehabilitation Act
(“RA”).
4, Defendants Budish, Leiken, Ivey and Brunello are entitled to qualified
immunity on all claims brought pursuant to 42 U.S.C. § 1983.
5. Plaintiff's Monell claim against Defendants Budish, Leiken, Ivey and
Brunello must be dismissed because these Defendants did not violate any
Constitutional provision and are entitled to qualified immunity.
6. Immunity under Ohio Rev. Code § 2744 applies to all State law claims
asserted against Defendant Cuyahoga County, as well as all official
capacity claims.
7. All State law claims asserted against Defendants Budish, Leiken, Ivey and
Brunello, in their individual capacities, fail as they were not personally
involved in the incident; owed no duty toward Nicholas Colbert; and, are
entitled to immunity under Ohio Rev. Code § 2744.
On April 11, 2024, Defendants Shanda Zitiello RN, Thomas Tallman D.O., Leslie
Chute RN, and the MetroHealth System (the “MetroHealth Defendants”) filed a Motion
for Judgment on the Pleadings. (Docket #25.) On August 26, 2024, the Court granted
the Motion, thereby terminating the MetroHealth Defendants as Parties to this case.
(Docket #44.)
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8. There is no independent actionable claim for willful, wanton, reckless,
malicious and bad faith conduct.
0, Punitive damages cannot be assessed against Cuyahoga County.
(Docket #34.)
Plaintiff filed a Response in Opposition on August 12, 2024. (Docket #42.) The
Cuyahoga County Defendants filed a Reply Brief on August 26, 2024. (Docket #45.)
Standard of Review
Fed. R. Civ. P. 12(c) provides, “[a]fter the pleadings are closed — but early enough not to
delay trial — a party may move for judgment on the pleadings.” The standard of review for a
motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a
claim under Fed. R. Civ. P. 12(b)(6). E.E.O.C. v. JH. Routh Packing Co., 246 F.3d 850, 851 (6"
Cir. Ohio 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 Cir. Tenn. 1998)). □□□□□□
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.” Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 240 (6"
Cir. 2011) (citation omitted).
The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Solo v. UPS Co., 819 F.3d 788, 793 Cir. Mich. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In construing the pleadings, the Court
accepts the factual allegations of the non-movant as true, but not unwarranted inferences or legal
conclusions. Holland y. FCA US LLC, 656 F. App'x 232, 236-37 (6" Cir. Mich. 2016) (citing
Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6™ Cir. Tenn. 2000)).

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Discussion
A. Section 1983 claims against Defendants Budish Leiken, Ivey and Brunello.
“Section 1983 provides a cause of action for deprivation, under color of state law, of any
rights, privileges or immunities secured by the Constitution or laws of the United States.” Horn
v. Madison Cnty. Fiscal Court, 22 F.3d 653, 656 (6™ Cir. Ky. 1994). 42 U.S.C. § 1983 is not
itself a source of substantive rights but provides “‘a method for vindicating federal rights
elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989)(quoting Baker v.
McCollan, 443 U.S. 137, n.3 (1979)). “To state a claim under 42 U.S.C. § 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 the color of
state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6" Cir. Ohio 2006) (citing West
v. Atkins, 487 U.S. 42, 48 (1988)).
Section 1983 individual capacity claims differ from Section 1983 official capacity claims.
Peatross vy. City of Memphis, 818 F.3d 233, 240-41 (6™ Cir. Tenn. 2016). “[A]n
individual-capacity claim seeks to hold an official personally liable for the wrong alleged.” Jd. at
241. On the other hand, “[a]n official-capacity claim against a person is essentially a claim
against the municipality.” Jd.; Hafer v. Melo, 502 U.S. 21, 25 (1991) (“official-capacity suits
generally represent only another way of pleading an action against an entity of which an officer is
an agent.”) (internal quotations marks omitted).
“TW here the governmental entity itself is also a defendant, a claim against an official or
employee of the entity in their official capacity is superfluous or redundant.” Day v. DeLong,
358 F. Supp. 3d 687, 700 (S.D. Ohio 2019)(citing Slocum v. City of Cleveland Heights, Case No.
1:14 CV 532, 2014 U.S. Dist. LEXIS 83700, *8 (N.D. Ohio June 19, 2014)). As conceded by
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Plaintiff, the official capacity claims raised against the individual Defendants are redundant.
Turning to Plaintiff's individual capacity claims against Defendants Budish, Leiken, Ivey
and Brunello, a plaintiff cannot establish the liability of any individual defendant under Section
1983 absent a clear showing that the defendant was personally involved in the activities which
form the basis of the alleged unconstitutional behavior. Heyerman v. Cnty. of Calhoun, 680
F.3d. 642, 647 (6™ Cir. Mich. 2012) (noting that “[p]ersons sued in their individual capacities
under § 1983 can be held liable based only on their own unconstitutional behavior”); Murphy v.
Grenier, 406 Fed. App'x. 972, 974 (6" Cir. Mich. 2011) (“Personal involvement is necessary to
establish Section 1983 liability”). Individual liability must therefore “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.” Gibson v. Matthews, 926 F.2d 532,
535 (6" Cir. Ky. 1991).
Supervisory officials and employees cannot be held liable under Section 1983 solely on
the basis of respondeat superior, or the right to control employees, or on the basis that they failed
to remedy a subordinate’s unconstitutional conduct. Shehee v. Luttrell, 199 F.3d 295, 300 (6"
Cir. Ky. 1999). “[T]he defendant supervisor must be found to have “encouraged the specific
incident of misconduct or in some other way directly participated in it.” Essex v. County of
Livingston, 518 F. App’x 351, 355 (6 Cir. Mich 2013)(quoting Phillips v. Roane Cnty., 534
F.3d 531, 543 (6" Cir. Tenn. 2008); Shehee, 199 F.3d 295, 300)). The Sixth Circuit has held that
to be liable under Section 1983, a supervisor must at least implicitly authorize, approve, or
knowingly acquiesce in the unconstitutional conduct. Hays v. Jefferson Cnty., Ky., 668 F.2d 869,
874 (6" Cir. Ky. 1982). “A mere failure to act will not suffice to establish supervisory liability.
Essex, 518 F. App’x 351, 355 (citing Gregory v. City of Lousiville, 444 F.3d 725, 751 (6" Cir.
Fh

Ky. 2006)).
At all times relevant to the Complaint, Defendant Budish was the Cuyahoga County
Executive; Defendant Leiken was the County Executive’s Chief of Staff; Defendant Ivey was the
Warden at the County Jail; and, Defendant Brunello was Corporal at the County Jail. (Complaint
at Paragraphs 7-10.) Plaintiff states generally that each was responsible for operating the County
Jail and acted within the scope of their employment and under color of State law; that each was
responsible for the County Jail’s policies, procedures, practices, and customs as well as the
training and supervision of agents, servants and jail employees; and, that each had policy making
and/or final policy making authority for the County Jail.
However, Plaintiff's Complaint fails to set forth any factual allegations that Defendants
Budish, Leiken, Ivey or Brunello were personally involved in or implicitly authorized any
conduct that was related to Nicholas Colbert’s detention and the asserted injuries. Accordingly,
Plaintiff cannot establish that Defendants Budish, Leiken, Ivey or Brunello are liable in their
individual capacities. As set forth above, Plaintiff concedes that his official capacity claims
against individual Defendants are redundant and should be dismissed. Accordingly, Defendants
Budish, Leiken, Ivey and Brunello entitled to judgment as to all of Plaintiff's Section 1983
Claims.’
B. Plaintiff’s Monell Claim.
Defendants have also asked that the Court dismiss Plaintiff's Monel/ claim (Twelfth
Cause of Action) to the extent it is premised upon the alleged involvement of Defendants Budish,
Oo
It is unnecessary for the Court to address the issue of qualified immunity, as the
facts as alleged are insufficient to state a claim against individual Defendants Budish,
Leiken, Ivey and Brunello under Section 1983.
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Leiken, Ivey and Brunello. A plaintiff asserting a Section 1983 claim on the basis of municipal
custom or policy must identify the policy, connect the policy to the municipality itself, and show
that the particular injury was incurred because of the execution of that policy. Graham vy. County
of Washtenaw, 358 F.3d 377, 382 (6" Cir. Mich. 2004)(citing Doe v. Claiborne Cty., 103 F.3d
495, 505-06 (6" Cir. Mich. 1996)); see also Monell v. New York City Dep't. of Social Servs., 436
U.S. 658 (1978) (there must be a direct causal link between a county policy and the alleged
constitutional violation such that the county’s deliberate conduct can be deemed the moving
force behind the violation). In the absence of a Constitutional violation, there is no municipal
liability under 42 U.S.C. § 1983. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Plaintiff's Monell claim is asserted against Defendant Cuyahoga County. While there are
no allegations in the Complaint that Defendants Budish, Leiken, Ivey and Brunello had any
personal involvement in Nicholas Colbert’s detention at the County Jail, argument regarding the
validity of Plaintiff's Monell claim against Cuyahoga County is more appropriately raised on
summary judgment.
C. Plaintiff’s Americans With Disabilities Act and Rehabilitation Act Claims.
“The Americans with Disabilities Act and the Rehabilitation Act combat discrimination
against disabled individuals. Title II of the Americans with Disabilities Act provides that ‘no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.’” Gohl v. Livonia Pub. Sch. Sch. Dist., 836
F.3d 672, 681 (6 Cir. Mich. 2016), quoting 42 U.S.C. § 12132. “Section 504 of the
Rehabilitation Act provides that a qualified individual with a disability shall not, ‘solely by
reason of her or his disability, be excluded from the participation in, be denied the benefits of, or
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be subjected to discrimination under any program or activity receiving Federal financial
assistance.’” Gohl, 836 F.3d 672, 681, quoting 29 U.S.C. § 794(a). The ADA “requires the
plaintiff to present sufficiently ‘significant’ evidence of animus towards the disabled that is a but-
for cause of the discriminatory behavior.” Gohl, 836 F.3d 672, 681)(quoting Anderson v. City of
Blue Ash, 798 F.3d 338, 357 & n.1 (6th Cir. Ohio 2015)). “The [RA] sets the higher bar,
requiring plaintiffs to show that the defendant’s acts were done solely by reason of the
disability.” Gohl, 836 F.3d 672, 681 (citing G.C. v Owensboro Pub. Sch., 711 F.3d 623, 625 (6"
Cir. Ky. 2013)).
“Neither the ADA nor the RA provide a cause of action for inadequate medical care.’”
Harrison v. City of Cleveland, Case No. 1:19 CV 2328, 2020 U.S. Dist. LEXIS 219122, at *9
(N.D. Ohio Nov. 23, 2020)(quoting Larson v. Eppinger, Case No. 2:20 CV 4997, 2020 U.S. Dist.
LEXIS 204411, at *6 (S.D. Ohio Nov. 2, 2020)). “Courts routinely dismiss ADA suits by
disabled inmates that allege inadequate medical treatment but do not allege that the inmate was
treated differently because of his or her disability.” Vick v. Core Civic, 329 F. Supp. 3d 426, 443
(M.D. Tenn. 2018)(citing Bonds v. Southern Health Partners, Inc., Case No. 2:15 CV 209, 2016
US. Dist. LEXIS 46284 (E.D. Ky. Apr. 6, 2016; Carrion v. Wilkinson, 209 F. Supp.2d 1007,
1016 (N.D. Ohio 2004); Galvin v. Cook, Case No. 00 CV 29, 2000 U.S. Dist. LEXIS 15181, at
*6-7 (D. Or. Oct. 3, 2000)).
Plaintiff does not allege Nicholas Colbert was treated differently because of a disability.
Accordingly, Defendants are entitled to judgment on Plaintiff's ADA and RA claims.
D. Plaintiffs State Law Claims Against Defendant Cuyahoga County.
Ohio Rev. Code § 2744.02(A)(1), provides as follows:

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Except as provided in Division (B) of this section, a political subdivision is not liable in
damages in a civil action for injury, death, or loss to persons or property allegedly caused
by an act or omission of the political subdivision or an employee of the political
subdivision in connection with a governmental or a proprietary function.
There are five exceptions to this immunity. Ohio Rev. Code §§ 2744.02(B)(1)-(5). The
exceptions to immunity include negligent operation of a motor vehicle; failure to maintain a
public road; the negligent performance of a proprietary function (the operation of the jail is a
governmental function, Ohio Rev. Code § 2744.01(C)(2)(h))’; injury or loss caused by
negligently-created physical defects within or on the grounds of buildings used for governmental
functions, excluding jails; and, where liability is expressly imposed elsewhere in the Ohio
Revised Code. Under the facts as alleged in the Complaint, none of the exceptions to immunity
apply. Accordingly, Defendants are entitled to judgment as to all of Plaintiffs State law claims
against Defendant Cuyahoga County.
E. Plaintiffs State Law Claims Against Defendants Budish, Leiken, Ivey and
Brunello In Their Individual Capacities.
Plaintiff argues that his State law claims against Defendants Budish, Leiken, Ivey and
Brunello in their individual capacities should survive Defendants’ Motion for Judgment on the
Pleadings, relying on the exception to statutory immunity for malicious, bad faith or wanton or
reckless actions. Ohio Rev. Code § 2744.03(A)(6)(b).
“Malice” is the willful and intentional design to harm another through conduct that is
unlawful or unjustified. Morrison v. Board of Trustees. of Green Twp., 529 F. Supp. 2d 807, 835
(S.D. Ohio 2007) (citing Cook, 103 Ohio App.3d at 90, 658 N.E.2d 814)). “Bad faith” involves a
Operating a jail and providing medical services within it are governmental
functions. Ruffin v. Cuyahoga Cty., Case No. 1:16 CV 640, 2017 U.S. Dist. LEXIS
102199, *41-42 (N.D. Ohio June 30, 2017).
af te

“dishonest purpose, conscious wrongdoing, the breach of a known duty through some ulterior
motive or ill will, as in the nature of fraud, or an actual intent to mislead or deceive another.” Jd.
“Wanton misconduct” is the “failure to exercise any care whatsoever.” Jd.
The facts as alleged in the Complaint do not demonstrate that Defendants Budish, Leiken,
Ivey and Brunello participated in or had knowledge of Nicholas Colbert’s incarceration, let alone
facts which demonstrate malicious, bad faith or willful or wanton misconduct by said
Defendants. Accordingly, Defendants are entitled to Judgment on Plaintiff's State law claims
brought against Defendants Budish, Leiken, Ivey and Brunello in their individual capacities.
F. Conceded claims.
Plaintiff concedes all of his official capacity claims. Plaintiff concedes his claim for
punitive damages against Cuyahoga County. Further, Plaintiff does not dispute that there exists
no independent cause of action for willful, wanton, reckless, malicious and bad faith conduct.
Accordingly, Plaintiff is entitled to judgment on each of these claims.
Conclusion
For the foregoing reasons, the Motion for Judgment on the Pleadings (Docket #34) filed
by Defendants, Cuyahoga County, Armond Budish, Earl Leiken, Kenneth Mills, Eric J. Ivey,
James Lee Johnson, Robert Head, Andre Averyheart and Antonio Brunello is hereby GRANTED
IN PART. Defendants are entitled to judgment on the following claims:
° All official capacity claims.
° Plaintiff's Section 1983 claims against Defendants Budish, Leiken, Ivey, and
Brunello in their individual capacities.
° Plaintiff's Third Cause of Action for willful, wanton, reckless, malicious and bad
faith conduct.
° Plaintiff's State law claims asserted against Cuyahoga County.
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° Plaintiff's State law claims against Defendants Budish, Leiken, Ivey and Brunello.
° Plaintiff's Tenth Cause of Action alleging claims under the ADA and RA.
° Plaintiffs claim for punitive damages against Cuyahoga County.
This case is hereby terminated as to Defendants Armond Budish, Earl Leiken, Eric J. Ivey
and Antonio Brunello.
This case was previously stayed pending ruling on the Parties’ Motions for Judgment on
the Pleadings. The stay is hereby lifted. A status conference remains set for December 12, 2024
at 8:45 a.m.
IT IS SO ORDERED.

DONALD C. NUGEN
United States District Judge

DATED: a bub Z 5 20 14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664691. Public record. Not legal advice.