Brown v. Cincinnati Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAQUAN BROWN, Case No. 1:24-cv-316

Plaintiff, McFarland, J.

Bowman, M.J.

v.

CINCINNATI POLICE DEPARTMENT, et al.,

Defendants.

SUPPLEMENTAL REPORT AND RECOMMENDATION

On June 7, 2024, Plaintiff DaQuan Brown,1 proceeding pro se, filed an application

seeking to initiate the above-captioned case in forma pauperis, or without payment of a

filing fee. On July 8, 2024, Plaintiff was granted leave to proceed in forma pauperis

pursuant to 28 U.S.C. § 1915. On the same date, the undersigned filed a Report and

Recommendation (“R&R”) permitting claims against Defendants Wermuth, Ward, Pect

and Esser to proceed for further development, with claims against all other Defendants

to be dismissed for failure to state a claim. (Doc. 4).

Plaintiff filed no timely objections to that R&R, which remains pending before the

presiding district judge. Instead, Plaintiff filed an Amended Complaint on July 30, 2024.

Under Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, a plaintiff may amend a

complaint “once as a matter of course” within 21 days after service of a responsive

pleading or motion under Rule 12(b), (e), or (f). Therefore, Plaintiff’s Amended Complaint

was filed as of right. But because the Amended Complaint is now the operative pleading,

1The prior R&R mistakenly referred to Plaintiff with feminine pronouns. In the Amended Complaint, Plaintiff

clarifies that he is male.

this Supplemental R&R must be issued in order to properly screen the newly Amended

Complaint.

I. The Screening Standard

In enacting the original in forma pauperis statute, Congress recognized that a

“litigant whose filing fees and court costs are assumed by the public, unlike a paying

litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive

lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)).To prevent such abusive litigation, Congress has authorized federal

courts to dismiss an in forma pauperis complaint if they are satisfied that the action is

frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be

dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v.

Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis

when the defendant is immune from suit or when plaintiff claims a violation of a legal

interest which clearly does not exist. Neitzke, 490 U.S. at 327.

Congress also has authorized the sua sponte dismissal of complaints that fail to

state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint

filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,

however, the complaint “must contain 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d

at 470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for

failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept

all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion

couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual

allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that

offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint

must “give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Erickson, 551 U.S. at 93 (citations omitted).

II. Plaintiff’s Amended Complaint

Plaintiff’s Amended Complaint largely reiterates and seeks to clarify the claims

against the four Defendants against whom he was previously permitted to proceed. (See

generally, Doc. 4, permitting claims against Defendants Wermuth, Ward, Pect and Esser).

However, the Amended Complaint omits all allegations against the following Defendants:

Jacob Hicks; Jeffrey Wicezorkowski; Michael Miller; P361; Douglas White; Arron Roach;

Justin Gottman; and Millenium Towing. Based on Plaintiff’s omission in his amended

Complaint of all claims against those Defendants, the undersigned finds no need to

further explain why Plaintiff’s original allegations were insufficient to state any claim

against them. Instead, as correctly noted on the docket sheet by the Clerk of Court, those

eight Defendants have been voluntarily dismissed by Plaintiff through the filing of the

Amended Complaint.

Consistent with the original complaint, Plaintiff’s Amended Complaint identifies the

basis for federal jurisdiction as 42 U.S.C. § 1983. Also similar to his original complaint,

Plaintiff states that he seeks injunctive, declaratory and monetary relief, including “fil[ing]

charges” for violations of Ohio law “against officers involved,” and granting “punitive

damage[s].” (Doc. 6, PageID 149). Plaintiff’s Amended Complaint omits prior allegations

that bordered on the “fantastic or delusional,” and therefore is much shorter than his

original pleading. As amended, the complaint now consists of a 4-page complaint form

and a 15-page attachment that contains 95 numbered allegations, followed by an

unnumbered state law claim for the intentional infliction of emotional distress.

Briefly, Plaintiff alleges that he was unlawfully and physically pulled out of his

brother’s apartment by Defendant Police Officer Christopher Wermuth during an incident

that occurred on January 8, 2024. Defendant Officers Emily Ward and Dustin Pect were

also at the scene. Plaintiff alleges that he previously filed a use-of-force complaint against

all three officers for their conduct during that incident with the Cincinnati Police

Department. (Doc. 6, ¶70, PageID 159). Several months later, on May 10, 2024, Plaintiff

alleges that the Cincinnati Police Department “assisted Millennium Towing with towing

the Plaintiff and his brother[‘s] food truck away,” and that while doing so, Defendant

Sergeant Elsa Esser “unlawfully, repeatedly pushed the Plaintiff as the Plaintiff began

walking backwards.” (Doc. 6, ¶ 68). Plaintiff alleges that he also filed a use-of-force

complaint against Defendant Esser with the Police Department. (Id., ¶ 71).

Plaintiff’s original complaint identified the “Cincinnati Police Department District 3”

as a Defendant. In his Amended Complaint, Plaintiff omits or dismisses the Cincinnati

Police Department, while adding the “City of Cincinnati” as a new Defendant.2

Plaintiff alleges that “all actions taken by officers were the direct and proximate

result of the failure of the City of Cincinnati to properly train members of the Cincinnati

Police Department, including officers.” (Id., ¶4, PageID 151). He further alleges that

“Defendants[‘] pattern, practice and customs alleged in this complaint have violated rights

granted to plaintiff by 42 U.S.C. 1983 and the equal protection clause….” (Id., ¶5). And

he alleges that the Defendant City and individual Defendants Johnston and Sprague

exhibited “deliberate indifference” when they

directly and proximately caused the CPD policy, practice and/or custom of

use of force in violation of the first and fourteenth Amendment by devising,

implementing, enforcing, adopting, sanctioning and ratifying a policy,

practice and/or custom of (a) failing to properly screen, train, and supervise

CPD officers (B) failing to adequately monitor and discipline the CPD and

its officers; and (c) encouraging, sanctioning and failing to rectify the CPD

constitutional abuse.

(Doc. 6, ¶7, PageID 151). Plaintiff further alleges that the City, Sprague and Johnston

“failed to properly and adequately monitor, discipline and take necessary corrective action

against CPD officers,” and that “knowing…such omissions,” the same three Defendants

“acted recklessly and with deliberate indifference to the constitutional rights of the Plaintiff

and those who would come into contact with the CPD.” (Id., ¶¶ 8-9).

Plaintiff generally alleges that the City “possessed final policy making, authority

and training for the CPD.” (Id., ¶ 15). He alleges that Defendant Johnston “is and was at

2Despite the omission, the Clerk of Court has not yet terminated the Cincinnati Police Department on the

docket sheet, nor does the docket sheet reflect the addition of the City of Cincinnati.

all times relevant herein, the Police Commander for the CPD and is and was responsible

for the hiring, screening, training, retention, supervision, discipline, counseling and control

of the police officers under his command who are or were employed by the CPD including

the officers named herein.” (Id., ¶ 16). Plaintiff alleges that Defendant Sprague “is and

was at all times relevant herein, a lieutenant, actin[g] as Internal Section for the City of

Cincinnati, operating under the color of state law.” (Id., ¶22). Plaintiff further alleges that

on July 16, 2024, Defendant Sprague “with the internal section responded to the

Plaintiff[‘s] complaint filed on January 8, 2024,” and “deemed that the CPD Officer action

complied with Department policies and procedure.” (Id., ¶72, PageID 159). Plaintiff

suggests that Defendant Sprague based his investigative decision on an “untrue” fact

reported in the CPD incident report. (Id., ¶ 73).

III. Analysis

“To state a viable claim under 42 U.S.C. § 1983, a plaintiff ‘must allege that he was

deprived of a right secured by the Federal Constitution or laws of the United States by a

person acting under color of state law.’” Smith v. Detroit Entertainment L.L.C., 338

F.Supp.2d 775, 778 (E.D. Mich. 2004) (quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335

(6th Cir.1992)). At this stage in the proceedings, without the benefit of briefing by the

parties to this action, the undersigned again concludes, in an abundance of caution, that

Plaintiff’s claims against Defendants Elsa, Wermuth, Ward and Pect are deserving of

further development.

By contrast, Plaintiff’s amended complaint falls short when it comes to specific

factual allegations against newly added Defendants Sprague and Johnston, as well as

his new allegations against the City of Cincinnati.

As stated, Plaintiff’s original complaint identified the Cincinnati Police Department

rather than the City of Cincinnati itself as a Defendant. But the undersigned explained in

the prior R&R that the Cincinnati Police Department is “a mere arm of the City” and “not

its own entity” and is therefore “not capable of being sued.” Hale v. Vance, 267 F.Supp.2d

725, 737 (S.D. Ohio 2003); see also Rhodes v. McDaniel, 945 F.2d 117, 12 (6th Cir. 1991)

(Police Departments are part of a larger political subdivision and cannot be sued).

In his new Amended Complaint, Plaintiff has taken that instruction. Thus, his

Amended Complain omits the Cincinnati Police Department as a Defendant and adds in

its place the “City of Cincinnati.” The omission of the Cincinnati Police Department

amounts to a voluntary dismissal of that entity – which, as noted, is not sui juris in any

event.

But Plaintiff’s addition of the City of Cincinnati as a new Defendant in place of the

Police Department is not sufficient to state any cognizable claim under 42 U.S.C. § 1983.

While the City of Cincinnati is a governmental entity that could theoretically act under

color of state law, “a local government may not be sued under § 1983 for an injury inflicted

solely by its employees or agents. Instead, it is when execution of a government's policy

or custom ... inflicts the injury that the government as an entity is responsible under §

1983.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); Leach v. Shelby County

Sheriff, 891 F.2d 1241, 1245-46 (6th Cir.1989).

Here, all allegations against the City are entirely conclusory. Plaintiff repeatedly

alleges some type of vague “failure to train” by the City without identifying any specific

policy or custom by the City that caused his alleged injuries. (See, e.g., Doc. 6 at ¶¶ 4, 5,

7, 15, referring to an undefined “policy, practice and/or custom.”). This Court will not infer

allegations that are not pleaded. Accord Stump v. City of Mount Vernon, 2019 WL 176325,

at *2 (S.D. Ohio Jan. 11, 2019) (dismissing on initial screening complaint where plaintiff

failed to allege that any official policy or custom resulted in the violation of his

constitutional rights). Plaintiff's conclusory assertions are precisely the type of legal

conclusions couched as factual allegations that do not pass muster under Twombly or

Iqbal. “A mere conclusory allegation that a municipality employs an unlawful policy or

custom, without identifying the policy or stating a pattern of conformance to that custom,

is not sufficient.” Finnell v. Eppans, No. 1:20-cv-337-MRB-SKB, 2020 WL 3548200, at *3

(S.D. Ohio June 15, 2020) (quoting Hargrow v. Shelby Cty., Tenn., No. 13-2770, 2014

WL 3891811, at *4 (W.D. Tenn. Aug. 7, 2014), report and recommendation adopted at

2020 WL 3545288 (S.D. Ohio June 30, 2020); see also, e.g., Rowland v. City of Memphis,

Tenn., No. 2:13-CV-02040-JPM, 2013 WL 2147457, at *5 (W.D. Tenn. May 15, 2013)

(finding the plaintiff's allegations to be conclusory “because they simply assume that an

unlawful seizure or disposal of property must be the result of the City's failure to train or

the City's policies and procedures.”); Biggin v. Ohio, No. 3:17-CV-2193, 2019 WL

3500921, at *7 (N.D. Ohio Aug. 1, 2019) (“Plaintiff's conclusory allegations, utterly devoid

as they are, of any factual underpinning, simply cannot sustain a policy/practice failure to

train claim.”); Austin v. City of Cincinnati, No. 1:15-CV-608, 2015 WL 5680382, at *3 (S.D.

Ohio Sept. 25, 2015) (finding “plaintiff's conclusory allegations of an ‘implicit or explicit’

unidentified policy and of a failure to train and supervisor, without more, fail to state” a

plausible claim under § 1983), report and recommendation adopted, No. 1:15-CV-608,

2016 WL 1718264 (S.D. Ohio Apr. 28, 2016); Broyles v. Corr. Med. Servs., Inc., No. 08-

1638, 2009 WL 3154241, at *2 (6th Cir. Jan. 23, 2009) (finding that “bare allegations of a

custom or policy, unsupported by any evidence, are insufficient to establish entitlement

to relief.”). As plaintiff has failed to state a claim for relief against the City of Cincinnati

under § 1983, plaintiff's official capacity claims against all Defendants are also subject to

dismissal.

Plaintiff’s newly asserted claims against Defendants Sprague and Johnston in their

individual capacities fail for the similar reasons. Identifying who harmed the plaintiff and

how they did so is a “basic pleading essential” required to state a claim. Wells v. Brown,

891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Wal-Mart Stores, Inc., 507 Fed.

Appx. 543, 547 (6th Cir. 2012) (courts “are not required to conjure up allegations not

pleaded or guess at the nature of an argument.”). “The Sixth Circuit ‘has consistently held

that damage claims against government officials arising from alleged violations of

constitutional rights must allege...facts that demonstrate what each defendant did that

violated the asserted constitutional right.’” Reid v. City of Detroit, No. 18-13681, 2020 WL

5902597, at *6 (E.D. Mich. Oct. 5, 2020) (quoting Lanman v. Hinson, 529 F.3d 673, 684

(6th Cir. 2008)) (emphasis in original). That is, Plaintiff must show that the alleged

violation of his constitutional rights “was committed personally” by the defendant. Id.

(emphasis in original); Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012)

(persons sued in their individual capacities under § 1983 are liable only for their own

unconstitutional behavior) (citations omitted).

Plaintiff’s Amended Complaint alleges that Defendants Sprague and Johnston are

liable primarily if not exclusively based on the supervisory positions that they occupy with

the Cincinnati Police Department.3 But “respondeat superior” or supervisory liability is not

3Plaintiff includes an additional allegation against Defendant Sprague, suggesting that he made the wrong

call when he determined that officers complied with policy during an investigation of the January 8 incident.

cognizable in a § 1983 action. “[A] supervisory official's failure to supervise, control or

train the offending individual is not actionable unless the supervisor ‘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.’ ” Shehee

v. Latrell, 199 F.3d 295, 300 (6th Cir. 1999), quoting Hays v. Jefferson Cty., Ky., 668 F.2d

869, 874 (6th Cir. 1982). Furthermore, simple awareness followed by the failure to act will

not impose liability under § 1983: “[L]iability under § 1983 must be based on active

unconstitutional behavior and cannot be based upon ‘a mere failure to act.’” Shehee, 199

F.3d at 300 (quoting Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.

1998)).

IV. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT all claims against all

Defendants except for Defendants Wermuth, Ward, Pect and Esser in their individual

capacities should be DISMISSED with prejudice for failure to state a claim under 28

U.S.C. § 1915(e)(2)(B).

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

But Defendant Sprague’s involvement in that investigation – even if based on a fact that Plaintiff alleges

was “untrue” – does not subject him to liability because Plaintiff does not allege any causal link between

his decision and Plaintiff’s injuries. See Pheap v. City of Knoxville, 687 F.Supp.3d 807, 818 (E.D. Tenn.

2023) (holding that the failure to establish a clear and consistent pattern of inadequate investigations was

fatal to the plaintiff’s ratification theory).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAQUAN BROWN, Case No. 1:24-cv-316

Plaintiff, McFarland, J.

Bowman, M.J.

v.

CINCINNATI POLICE DEPARTMENT, et al.,

Defendants.

NOTICE

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

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

the filing date of this R&R. 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 (14)

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).