Brooks v. Roetting

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SHAREENA BROOKS, Case No: 1:24-cv-266

Plaintiff, Bowman, M.J.

v.

MICHAEL P. ROETTING, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER1

On March 7, 2024, Plaintiff filed this civil rights case in state court against City of

Cincinnati Police Officer Michael P. Roetting and two John and Jane Doe police officers,

alleging injury as a result of being tased by Defendant Roetting. Defendants removed the

case to this court. Currently pending is Defendants’ motion for judgment on the pleadings.

For the reasons stated, Defendants’ motion will be GRANTED.

I. Allegations of the Complaint

Plaintiff alleges that she was initially pulled over for a minor traffic offense, but was

placed under arrest on suspicion of driving under the influence and transported to the

District Three police station to be processed and for further testing, despite allegedly

having “consumed no alcohol prior to operating her vehicle.” (Doc. 6 at ¶ 8, 10-13). At the

police station, she was taken to a “DUI room,” also referred to as the intoxilyzer room.

1The parties have consented to disposition before the undersigned magistrate judge. See U.S.C. § 636(c)

and Doc. 18 (transferring case to the undersigned).

While in that room, one of Plaintiff’s arms was handcuffed to a metal rail while she was

seated in an adjacent chair. (Id., ¶ 14).

During the incident in which Defendant Roetting deployed his taser against her,

Plaintiff alleges that she “pos[ed] no risk of physical harm to any of the officers,” and that

she was not able to flee due to being handcuffed to a railing. (Id., ¶¶ 19, 20). She alleges

that Defendants “failed to de-escalate the situation” and that Officer Roetting instead

tased her in her chest in violation of police policy. (Id., ¶15, 16, 18, 20). She further alleges

that neither of the two John and Jane Doe officers “stepped in to intervene or stop”

Defendant Roetting from using his taser. (Id., ¶23). Immediately after deploying his taser,

Defendant Roetting instructed Plaintiff to put her hands behind her back, warning “I’m

going to light you up again” if she did not comply. (Id., ¶17).

In her first claim, Plaintiff alleges that Defendant Roetting’s use of his taser

constituted excessive force under state law. (Id., ¶ 22, 44-45). In a second claim, she

alleges that all three Defendants “intentionally and purposely deprived Plaintiff of her

constitutional right to be free from excessive force” under 42 U.S.C. § 1983. (Id., ¶ 49).

And in a third claim, Plaintiff alleges that the City of Cincinnati failed to train, supervise,

or discipline Defendant Roetting based on his history of “bad behavior and mistreatment

of citizens.” (Id., ¶ 52).

II. Standard of Review

The standard of review for a motion for judgment on the pleadings under Rule

12(c) is the same as the standard for a motion to dismiss under Rule 12(b)(6), with review

generally limited to the pleadings. See Morgan v. Church's Fried Chicken, 829 F.2d 10,

11 (6th Cir. 1987). In considering Defendants’ Rule 12(c) motion, the court “must construe

the complaint in the light most favorable to the plaintiff [and] accept all of the complaint's

factual allegations as true.” Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 512 (6th Cir.

2001) (citations omitted). But the Sixth Circuit also has held that when considering the

plausibility of a complaint that alleges excessive force against a police officer, a court may

consider video footage of the incident when “the videos are clear and blatantly contradict

or utterly discredit the plaintiff’s version of events.” Saalim v. Walmart, Inc., 97 F.4th 995

(6th Cir. 2024) (quoting Bell v. City of Southfield, Michigan, 37 F.4th 362, 364 (6th Cir.

2022) (additional citations omitted)).

III. Analysis of Defendant’s Motion

A. Plaintiff’s State Law Claim of Excessive Force is Time-Barred

Defendant Roetting persuasively argues that Plaintiff’s first claim, that he violated

state law by using more force than necessary when he deployed his taser, is barred by

Ohio’s one-year statute of limitations. In his response to Defendant’s motion, Plaintiff

concedes that point. Therefore, Defendant’s motion will be granted as to Plaintiff’s state

law claim.

B. Plaintiff’s Federal Claims

1. The Video Evidence is Admissible

Defendant Roetting’s argument that he is entitled to judgment on Plaintiff’s federal

excessive force claim rests heavily on the admissibility of the video record of the incident.

Plaintiff argues that the video footage should not be considered by this Court under Rule

12. While Plaintiff readily admits that the video evidence accurately depicts “an expanded

view of what occurred,” (Doc. 16 at PageID 165), she suggests that the video does not in

fact “blatantly contradict” or “utterly discredit” her allegations such that the evidence may

be considered. Instead, Plaintiff maintains that the video record is consistent with her

allegations. See Saalim v. Walmart, 97 F.4th at 1002 (holding that a trial court erred in

considering otherwise-relevant video evidence under Rule 12 because even defendants

conceded it was “wholly consistent” with the complaint).

The Court disagrees. The video record is both admissible under Rule 12(c) and

dispositive. Upon review, the video footage fully discredits an implicit allegation-by-

omission that Plaintiff was not actively resisting the officers at the time, as well as her

express allegation that she posed no risk of harm to anyone. Both allegations are critical

to Plaintiff’s excessive force claim. Because the referenced facts are central to the issue

of qualified immunity, and are depicted on video that blatantly contradicts Plaintiff’s

allegations regarding the same, the Court considers the video evidence without

converting Defendants’ motion to one for summary judgment. See Bell v. City of

Southfield, Michigan, 37 F.4th at 364 (holding that “when uncontroverted video evidence

easily resolves a case, we honor qualified immunity's principles by considering the videos”

at the motion-to-dismiss stage).

As in the controlling Bell case, the video first contradicts a key factual omission

concerning the need for force – the fact that Plaintiff was engaged in active physical

resistance.

Bell alleges only that the officers “tased [him] when there was no need to

do such.” R. 21, Pg. ID 241. In our hypotheticals, that would be the

equivalent of omitting evidence of a threat - like the presence of a gun. Bell

fails to mention that he continued resisting the officers as they attempted to

restrain him on the ground. The video clearly shows Bell moving his left arm

away from Officer Langewicz multiple times before the officer tased him.

The video blatantly contradicts the silence in Bell's account.

Id., 37 F.4th at 367. In the above-captioned case, the video similarly reflects that Plaintiff

was actively resisting being handcuffed at the time that Defendant Roetting deployed his

taser. In her response in opposition, Plaintiff does not dispute that she was engaged in

the active resistance that is depicted.

In addition to contradicting Plaintiff’s silence regarding her active resistance, the

video contradicts Plaintiff’s closely-related express allegation that she posed no risk of

physical harm to the officers. (See Doc. 6 at ¶¶ 16, 18). In contrast to that allegation, the

video record reflects a rapidly evolving situation where Plaintiff’s violent physical

resistance posed a risk to the involved officers as well as to herself. Both videos clearly

depict the critical moments at issue.

Therefore, this Court reviews and accepts Defendants’ verified video evidence to

support the Rule 12(c) motion to the extent stated. The contrary allegations made by

Plaintiff in her complaint (including the critical omission of her active resistance and the

threat of injury posed by that resistance) are rejected as “implausible” in the face of the

video record.

2. Defendant Roetting is Entitled to Qualified Immunity

Based on the video record, Defendant is entitled to qualified immunity in his

individual capacity on Plaintiff’s § 1983 claims. “The doctrine of qualified immunity

protects government officials ‘from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815,

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). Qualified

immunity “‘gives ample room for mistaken judgments by protecting ‘all but the plainly

incompetent or those who knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224,

229, 112 S.Ct. 534 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct.

1092 (1986)); see also Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). Qualified

immunity applies regardless of whether the official's error was a mistake of law or a

mistake of fact, or a mistake based on mixed questions of law and fact. Pearson, 555

U.S. at 231, 129 S.Ct. 808.

Qualified immunity is judged by two inquiries that may be determined in either

order. First, viewing the facts in a light most favorable to the plaintiff, the court must

determine whether the plaintiff has shown that a constitutional violation has occurred.

Second, the court must determine whether the claimed right was clearly established at

the time of the violation. Pearson, 555 U.S. at 232, 129 S.Ct. 808. 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, 1158 (6th Cir. 1996).

Plaintiff was a pretrial detainee. Therefore, in order to prove that excessive force

was used against her in violation of the Fourteenth Amendment, she is required to show

“only that the force purposely or knowingly used against [her] was objectively

unreasonable.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473, 576 U.S. 389, 396-97

(2015). To determine whether an officer’s use of force was objectively reasonable

“requires careful attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.

1865, 1872 (1989). In conducting its inquiry, a court must view events “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. “The calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments - in circumstances that

are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in

a particular situation.” Id., 490 U.S. at 396-97, 109 S.Ct. at 1872. Applying this standard,

many tasing cases in the Sixth Circuit rise and fall on the issue of whether a suspect is

actively resisting arrest or attempting to evade arrest, or the closely-related issue of

whether an officer’s safety is threatened. See Shanaberg v. Licking Cnty., Ohio, 936 F.3d

453, 456 (6th Cir. 2019) (finding the threat to officer safety to justify the use a taser, citing

Thomas v. City of Eastpointe, 715 Fed. Appx. 458, 460 (6th Cir. 2017) for its review of

case law holding that use of a taser is justified when a suspect exhibits “active

resistance.”).

The video evidence from the District Three station camera confirms that Plaintiff

was seated at what appears to be a desk with her left wrist handcuffed to the metal rail in

a corner of the DUI room. The room is very small, appearing on the video to be

approximately 6-7 feet wide. During the first hour of the video, Plaintiff appears calm. In

fact, at one point around 3:08 a.m., Officer Jane Doe, holding what appears to be a urine

sample cup, uncuffs Plaintiff and escorts her from the room, returning at approximately

3:11 a.m. and re-cuffing her left wrist at that time. At 3:27:40 a.m., additional officers

briefly appear, including a gloved male officer who takes out a stethoscope and blood

pressure cuff, and another female officer who appears to record Plaintiff’s vital signs.

Throughout the medical examination, which concludes at 3:30:40, Plaintiff continues to

be calm and cooperative. However, a few minutes after the medical exam, Plaintiff starts

moving around in her seat, touching her head repeatedly and pulling on her shirt in a

manner that’s suggestive of some agitation. She briefly settles again, resting her head in

her hands. During this time, the two “John and Jane Doe” officers2 stand nearby (within 3

feet), paying little attention to Plaintiff and conversing while holding paperwork. As the

scene unfolds, Defendant Roetting stands just outside the doorway, holding a water bottle

while looking into the room.

At 3:40:49:41, Plaintiff exhibits increased agitation, pounding her free right fist on

the desktop/small table in front of her. The commotion causes Officer John Doe to turn

toward Plaintiff, who continues to pound the table. Two seconds later, Plaintiff raises her

right fist higher and forcefully pounds the table a fourth time. She begins to stand as

Officer John Doe steps toward her. (Station Video 3:40:51:447). Setting down his papers,

Officer John Doe reaches for her right arm in order to secure her free right hand. But

Plaintiff vigorously and successfully resists his attempts to secure her over the next

several seconds, using her legs, free arm, and body to evade his grasp.3 Approximately

six seconds into his struggle, at 3:40:57:34, Officer Jane Doe steps in to assist. In

response, Plaintiff’s resistance intensifies. In addition to using her free arm to push Officer

John Doe away, Plaintiff steps up onto the chair on which she had been seated and then

onto the adjacent desktop. She briefly crouches above the officers until Officer Jane Doe

is able to grab her left leg and force her back down. (Station Video 3:40:59 – 3:41:04).

2Defendants’ motion to dismiss identifies Officer Jane Doe as Officer Hurd, and John Doe as Officer Fischer.

To be consistent with the complaint, the Court will refer to them as Jane and John Doe.

3Officer John Doe nearly lost his balance at one point, though he did not fall. (3:40:57 – 3:40:58).

Plaintiff’s movements to evade the officers’ attempts to fully secure her are frustrated only

partly by her left wrist being handcuffed to the railing.4 For several more seconds, her

physical resistance to being subdued and handcuffed proves effective.

Observing his fellow officers’ struggle, Officer Roetting strides from the doorway

into the room to assist at the same time that Plaintiff steps up onto the chair. He drops his

water bottle into a nearby trash can before turning toward the melee. Over the next

seconds (Station Video 3:41:04 – 3:41:06), Plaintiff appears to push Officer John Doe

and moves her free hand toward Defendant Roetting, who has withdrawn his taser from

its holster and is positioned slightly behind and between his fellow officers. At 3:41:06,

Defendant Roetting aims his taser directly at Plaintiff’s chest and briefly discharges it.

(Station Video 3:41:07). In response, Plaintiff falls toward the floor. (Station Video

3:41:14). Officer John Doe catches her as she falls and places her back in the chair

(3:40:20). Officer John Doe then removes the newly subdued Plaintiff’s left handcuff from

the railing, handcuffs both of Plaintiff’s hands behind her back, and – together with Officer

Jane Doe and Roetting - escorts her out of the room. (Station Video 3:41:22 – 3:43:16).

In short, the video therefore confirms that Defendant Roetting very briefly deployed

his taser a single time during a rapidly evolving and volatile confrontation during which

Plaintiff went from sitting calmly to a state of extreme agitation, actively resisting two

officers’ attempts to further secure and subdue her. During the roughly 18 seconds that

elapses from the start of the incident until Defendant used his taser, Plaintiff continually

escalates her resistance, using her legs and body to fight with and evade the officers

trying to subdue her, as well as her free right hand and arm.

4Although unable to flee, her wrist was able to slide along the length of the railing as she evaded the officers

during her struggle.

The Lack of a Constitutional Violation

Defendant Roetting is entitled to qualified immunity because Plaintiff cannot show

that a constitutional violation has occurred. Plaintiff does not deny that she was actively

resisting the officers’ attempts to handcuff her, but denies the extent to which her actions

posed any genuine threat by emphasizing that one arm remained secured to the wall, so

that Defendant Roetting and the John and Jane Doe officers “had the ability to simply

move away from Plaintiff” to avoid harm to themselves. (Doc. 16, PageID 170).

But Plaintiff’s argument epitomizes the “20/20 vision of hindsight” view that

Graham eschews. The physical altercation arose rapidly in very tight quarters and

presented a legitimate threat of injury to the officers as well as to Plaintiff herself, as she

continued to flail her free arm and to contort and move her legs and body to evade being

subdued and handcuffed. Because Plaintiff was actively resisting being further restrained

and posed a threat of harm, she cannot show that Defendant Roetting’s use of his taser

to regain control of the highly volatile situation was objectively unreasonable.

Generally, taser use has been found reasonable when the suspect was

actively resisting and unreasonable where the suspect was not. Thomas v.

City of Eastpointe, 715 F. App'x 458, 460 (6th Cir. 2017); Goodwin v. City

of Painesville, 781 F.3d 314, 323 (6th Cir. 2015) (“Active resistance to an

officer's command can legitimize an officer's use of a [t]aser.”). For example,

verbal hostility, deliberate acts of defiance, physically struggling with police,

and refusing to be handcuffed are considered forms of active resistance.

Thomas, 715 F. App'x at 460; Goodwin, 781 F.3d at 323; Hagans v. Franklin

Cnty. Sheriff's Off., 695 F.3d 505, 509 (6th Cir. 2012). “There is no clearly

established right for a suspect who ‘actively resists’ and refuses to be

handcuffed to be free from [t]aser application.” Goodwin, 781 F.3d at 323

(quoting Hagans, 695 F.3d at 509).

Spradlin v. Primm, 581 F.Supp.3d 837, 844 (E.D. Ky. 2022). A plaintiff engages in “active

resistance” when they are “out of control” and “forcefully ... resist arrest,” or when the

individual is “highly intoxicated, volatile, and uncooperative,” or “moving around violently.”

Saalim v. Walmart, 97 F.4th at 1005 (collecting cases, internal quotation marks and

citations omitted). “By contrast, when individuals behave nonviolently and are merely

noncompliant, this Court has found that they are only passively resisting arrest, which

weighs against the reasonableness of a use of force.” Id.

Plaintiff’s reliance on the recent Saalim case in aid of her claims is misplaced. In

sharp contrast to the record here, the arrestee had been engaged in only “passive

resistance” when the officer twice deployed his taser.

The facts alleged in Saalim's complaint paint the following picture. After an

approximately 30 second interaction in which Saalim did not produce his

driver's license when requested, Bretzloff - without first asking Saalim to exit

the vehicle and giving him time to comply - opened the cab's door and

attempted to force him out of the cab by grabbing Saalim's arm. Another 30

seconds later, Saalim exited the cab, and Bretzloff “shoved” him against the

side of the cab. Compl., R. 1, Page ID #14. Then, Saalim turned to speak

to Bretzloff. A few seconds later, while Saalim was facing the cab and his

back was to Bretzloff, Bretzloff pulled out handcuffs. Saalim then turned

around to face Bretzloff again, and stood against the cab “with both hands

visible and empty,” at which point Bretzloff tased him. Id. at Page ID #15.

Approximately eight seconds later, Bretzloff tased Saalim again. …Saalim's

mere turning to face Bretzloff does not indicate active resistance to being

handcuffed. The complaint does not allege that he jerked his hands away

or that he hid his hands to try and avoid being handcuffed. To the contrary,

it alleges that the moment before he was tased, Saalim had both of his

hands visible and empty. And it does not contain other indicia of active

resistance.

Saalim v. Walmart, Inc., 97 F.4th at 1008. Unlike cases of active resistance in which

officers were granted qualified immunity for their use of force, the Sixth Circuit denied

qualified immunity because Saalim’s behavior did not appear to be erratic and dangerous,

and he took no other “more drastic measures to avoid being handcuffed.” Id., 97 F.4th at

1006-08. In the case presented, however, the video evidence depicts Plaintiff engaging

in very active resistance to the officers’ attempts to restrain her free right hand, taking

“drastic measures” to avoid being fully handcuffed.

The Lack of a “Clearly Established” Constitutional Right

Even if a reviewing court were to disagree with the above analysis, Defendant

Roetting would still be entitled to qualified immunity because Plaintiff cannot show that

use of a taser under the circumstances violated a clearly established constitutional right.

“The critical threshold step is defining the right at issue.” Finley v. Huss, 102 F.4th 789,

808 (6th Cir. 2024). Plaintiff points to the Sixth Circuit’s pronouncement that “by 2020…it

was clearly established in this circuit that an individual has a constitutional right not to be

tased when he or she is not actively resisting.” Saalim, at 1010 (internal quotation and

additional citation omitted).

But that is not the right that Plaintiff asserts, because the uncontroverted video

evidence confirms that she was actively resisting being fully handcuffed. So the issue

presented is whether it was clearly established that an individual has a constitutional right

not to be tased when she is actively resisting, is not subdued, and is only partially

restrained.

Existing precedent clearly establishes a violation when controlling authority

- that is, a Supreme Court decision, published Sixth Circuit decision, or here,

a [district court]… decision - bars the official's conduct. See Ortega, 737

F.3d at 439-40. It can also establish a violation when an on-point and

“robust consensus of cases of persuasive authority” places the violation

beyond debate. Id. Such authority cannot just suggest that the officials’

conduct was unlawful. Wesby, 583 U.S. at 63, 138 S.Ct. 577. Rather, it must

make apparent that the conduct was unlawful under the circumstances.

Finley v. Huss, 102 F.4th 789, 808 (6th Cir. 2024). Plaintiff cites to no controlling

precedent that clearly establishes Plaintiff’s right not to be tased when actively resisting

and only partially restrained.

In all of the cases on which Plaintiff relies, the individuals were fully subdued and

not actively resisting when force was deployed. In those cases, being completely

handcuffed/restrained and immobilized eliminated any threat. See, e.g., Michaels v. City

of Vermillion, 539 F. Supp.2d 975, 985 (N.D. Ohio 2008) (in a case without video, crediting

plaintiff’s account, finding repeated gratuitous use of a taser against a fully handcuffed

suspect who was not resisting). But here, the undisputed video evidence shows that,

despite being hampered by one handcuff, Plaintiff was able to use her remaining free

limbs in active resistance.

During the critical time period, Plaintiff was out of control. The facts presented in

this case are similar to those presented in Bell v. City of Southfield, Michigan, 37 F.4th at

367. There, the Sixth Circuit granted qualified immunity to an officer who employed a

taser where the video evidence showed the individual was engaged in “active resistance”

by repeatedly pulling his arm away to avoid a handcuff, even after being verbally warned

he would be tased if he didn’t comply. Id., 37 F.4th at 368; see also Hagans v. Franklin

Cnty. Sheriff's Off., 695 F.3d 505, 509 (6th Cir. 2012) (finding active resistance, and thus

no constitutional violation, when officers tased a plaintiff who refused to allow officers to

secure his arms behind his back). The Bell court noted that “the officers… couldn't get

control over either of Bell's arms before Langewicz tased him once” in order to gain

control. Id. at 368.

In response to Defendant’s motion, Plaintiff asserts that the lack of a verbal

warning by Defendant Roetting before he discharged his taser also provides a basis for

denying qualified immunity. But the presence or lack of a verbal warning prior to the use

of a taser is only one aspect to consider in light of the “totality of circumstances.” And

again, Plaintiff cites to no controlling case that establishes a constitutional right to a verbal

warning prior to using a taser against an actively resisting detainee. Given that Plaintiff’s

resistance so quickly placed officers in harm’s way notwithstanding her relatively limited

ability to inflict serious injury, this Court will not second guess Defendant Roetting’s split-

second decision to employ a taser in order to quell the threat.

In a final argument, Plaintiff asserts that Defendant Roetting deployed his taser in

violation of a Cincinnati Police Policy that prohibits the use of a “frontal” taser shot “except

in the situation[] of self-defense or defense of another.” (Complaint at ¶24). Plaintiff further

asserts that Defendants violated Section 12.545 of the same policy, which states that

“whenever possible de-escalation techniques shall be employed to gain voluntary

compliance by a subject.” (Id. at ¶ 26 (emphasis added)). Plaintiff’s argument

presupposes that this Court will ignore the video evidence that shows that Plaintiff’s active

resistance did pose a danger to Officers John and Jane Doe. So Roetting’s taser use

arguably did not violate City policy on the record presented. But even if the taser use

violated some aspect of the City’s policy,5 no controlling case law equates a violation of

municipal policy with constitutional injury. Therefore, the alleged policy violation does not

defeat Defendant’s motion for judgment.

3. Defendant is Entitled to Judgment on Plaintiff’s Monell Claim

Plaintiff has named Defendant Roetting in both his individual and official capacities.

“While personal-capacity suits seek to impose personal liability upon a government official

for actions he takes under color of state law, individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th

Cir. 2003) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)) (cleaned up). “A suit

against an individual in his official capacity is the equivalent of a suit against the

5Plaintiff’s assertion that Defendant Roetting’s taser use violated police policy arguably undercuts any

contention that the City should be held liable because its “policy” was the “moving force” behind her injury.

governmental entity.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will

v. Michigan Dept. of State Police, 491 U.S. 58, 68 (1989)). In other words, Plaintiff’s third

claim seeks recovery under 42 U.S.C. § 1983 from the City of Cincinnati. Defendant is

entitled to judgment as a matter of law on this claim.

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). Thus, to state a claim for relief against

the City of Cincinnati for plaintiff's alleged injuries, the complaint must allege facts

showing that the misconduct giving rise to plaintiff's injuries was the result of a policy,

statement, regulation, decision or custom promulgated by the City. Bright v. Gallia Cnty.,

Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing Shamaeizadeh v. Cunigan, 338 F.3d 535,

556 (6th Cir. 2003)); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). “[P]laintiff

must adequately plead (1) that a violation of a federal right took place, (2) that the

defendants acted under color of state law, and (3) that a municipality's policy or custom

caused that violation to happen.” Bright, 753 F.3d at 660 (citing Lambert v. Hartman, 517

F.3d 433, 439 (6th Cir. 2008)); see also Polk County v. Dodson, 454 U.S. 312 (1981)

(municipal policy must be “moving force” behind constitutional deprivation).

For the reasons discussed above, Plaintiff cannot show that Defendant Roetting

violated any clearly established constitutional right, or that the City’s policy or custom

caused a constitutional violation.

IV. Conclusion and Order

Accordingly, Defendant Roetting’s motion for judgment on the pleadings (Doc. 13)

is GRANTED, with this case to be DISMISSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge