“A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must ‘identify the policy, connect the policy to the [County] itself and show that the particular injury was incurred because of the execution of that policy.’”
How later courts described this case
- “A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must ‘identify the policy, connect the policy to the [County] itself and show that the particular injury was incurred because of the execution of that policy.’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANTHONY E. WILLIAMS, : Case No. 1:25-cv-1
:
Plaintiff, :
: District Judge Matthew W. McFarland
vs. : Magistrate Judge Kimberly A. Jolson
:
SGT. FRANKLIN, et al., :
:
Defendants. :
:
ORDER AND SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff’s Amended Complaint (Doc. 11) is before the Court. For the following reasons,
he MAY PROCEED on his Fourteenth Amendment excessive-force claim against Defendant
Franklin in his individual capacity. But the Undersigned RECOMMENDS that Plaintiff’s
official-capacity claims against Defendant Franklin and Plaintiff’s claims against the HCJC be
DISMISSED.
I. BACKGROUND
On January 2, 2025, Plaintiff, an Ohio prisoner currently housed at Ross Correctional
Institution, commenced this action under 42 U.S.C. § 1983 against Defendant Sgt. Franklin for
allegedly using excessive force against him while Plaintiff was housed at the Hamilton County
Justice Center (HCJC) in Cincinnati, Ohio. (See Doc. 1; see also Doc. 9 at 1 n.1).
On April 1, 2025, after Plaintiff corrected some deficiencies with his initial filings, he was
granted leave to proceed in forma pauperis. (Doc. 7). The Undersigned also issued an Order and
Report and Recommendation permitting Plaintiff to proceed on his Fourteenth Amendment
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excessive-force claim against Defendant Franklin in his individual capacity, but recommending
that any official-capacity claims against Sgt. Franklin be dismissed without prejudice for failure
to state a claim upon which relief could be granted. (Doc. 9 at 6). In doing so, the Undersigned
explained that an official-capacity claim against Sgt. Franklin was actually a claim against
Hamilton County, and Plaintiff failed to allege that he was injured by a county custom or policy,
as required to establish liability under Monell v. New York City Department of Social Services, 436
U.S. 658 (1978). (Id. at 4–5). The Undersigned also directed Plaintiff to submit updated service
forms that included Defendant Sgt. Franklin’s first name, if Plaintiff knew it. (Id. at 5–6). On
April 28, 2025, the Order and Report and Recommendation was adopted in its entirety by the
District Judge. (Doc. 10 (adopting Doc. 9)).
After that, Plaintiff filed an Amended Complaint, which initially was used to open a new
lawsuit. The filing was docketed in this case on May 5, 2025. (Doc. 11). The Amended Complaint
duplicates the original Complaint, with a few handwritten additions. Specifically, it indicates that
Plaintiff wishes to proceed against Defendant Franklin in both his individual and official capacities
and to name the HCJC as a second Defendant. (Id. at 3). The substance of Plaintiff’s allegations,
however, is unchanged. (See id.). Plaintiff also submitted a new summons form but says that he
does not know Defendant Franklin’s first name (Doc. 11-1; Doc. 11 at 3).
Where, as here, a responsive pleading has yet to be filed, a plaintiff may amend a complaint
once as a matter of course. See Fed. R. Civ. P. 15(a). Therefore, Plaintiff may amend without
leave of Court. See id. The Amended Complaint is the operative complaint and supersedes
Plaintiff’s original Complaint for all purposes. See In re Refrigerant Compressors Antitrust Litig.,
731 F.3d 586, 589 (6th Cir. 2013); see also Pacific Bell Telephone Co. v. Linkline Commc’ns, Inc.,
555 U.S. 438, 456 n.4 (2009).
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Now, the Undersigned screens the Amended Complaint (Doc. 11) to determine whether
any portion of it should be dismissed because it is frivolous, malicious, fails to state a claim upon
which relief may be granted or seeks monetary relief from a defendant who is immune from such
relief. See, 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
II. STANDARD
Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or
employee of a governmental entity,” and is proceeding in forma pauperis, the Court is required to
conduct an initial screen of his Amended Complaint (Doc. 11). 28 U.S.C. § 1915A(a) and 28
U.S.C. § 1915(e)(2). The Court must dismiss the Amended Complaint, or any portion of it, that is
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).
To state a claim for relief, a complaint must set forth “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must
construe the Amended Complaint in Plaintiff’s favor, accept all well-pleaded factual allegations
as true, and evaluate whether the Amended Complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). But a complaint that consists of
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is
insufficient. Id. (quoting Twombly, 550 U.S. at 555).
The Court also must construe a pro se complaint liberally and hold it “to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
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(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing Fed. R. Civ. P. 8(f) [now (e)]).
Even with such a liberal construction, a pro se complaint must still adhere to the “basic pleading
essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Specifically, a pro se “complaint
‘must contain either direct or inferential allegations respecting all the material elements’ to recover
under some viable legal theory.” Barhite v. Caruso, 377 F. App’x 508, 510 (6th Cir. 2010)
(quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).
III. SCREEN OF THE AMENDED COMPLAINT
As stated, the allegations in the Amended Complaint are duplicative of those contained in
the original Complaint. Plaintiff says that, while at the HCJC on January 9, 2024, Defendant Sgt.
Franklin tackled him to the ground at approximately 11:15 a.m., in the South Sally Port. (Doc. 11
at 3). According to Plaintiff, Defendant Franklin tackled him even though he had his hands in the
air “as a show of surrendering.” (Id.). Plaintiff’s wrist, right knee, finger, and right rotator cuff
were injured as a result. (Id). For this incident, Plaintiff seeks monetary and declaratory relief.
(Id. at 4).
Construing Plaintiff’s Amended Complaint liberally as it is required to do, the Court
understands Plaintiff to be alleging that Defendant Franklin violated his right to be free from
excessive force while detained at the HCJC. Because it appears that Plaintiff was a pretrial
detainee at the time of the alleged incident, “the Fourteenth Amendment’s more generally
applicable Due Process Clause governs to bar a governmental official’s excessive use of force.”
Johnston v. Hamilton Cnty. Just. Ctr., No. 1:18-CV-864, 2021 WL 534601, at *10 (S.D. Ohio Feb.
11, 2021) (quoting Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2014)). At this point, without
the benefit of an Answer or briefing by the parties, the Undersigned once again concludes that
Plaintiff’s Fourteenth Amendment excessive-force claim may proceed for further development
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against Defendant Franklin in an individual capacity. This is only a preliminary determination.
The Court has not ruled on the merits of the claims or potential defenses. Nor is Defendant
precluded from filing a motion to dismiss, motion for more definite statement, or other appropriate
motion under the Federal Rules of Civil Procedure. See, e.g., Wiley v. Austin, No. 8:20-CV-220,
2020 WL 6204382, at *3 (D. Neb. Oct. 22, 2020).
But Plaintiff has failed to state a claim against Defendant Franklin in an official capacity.
As previously stated, a claim against Defendant Franklin in his official capacity is, in reality, a
claim against Hamilton County. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989);
Kentucky v. Graham, 473 U.S. 159 (1985); Monell, 436 U.S at 690; Aladimi v. Hamilton Cnty.
Just. Ctr., No. 1:09-CV-398, 2012 WL 292587, at *10 (S.D. Ohio Feb. 1, 2012), report and
recommendation adopted, No. 1:09-CV-398, 2012 WL 529585 (S.D. Ohio Feb. 17, 2012) (“To
the extent that Plaintiff has identified three jail employees in their “official” capacities, his claims
are against Hamilton County itself.”). Plaintiff fails to state a claim for relief against Hamilton
County because municipalities and counties are not vicariously liable for the actions of their
employees under § 1983. Gregory v. Shelby Cnty., 220 F.3d 433, 441 (6th Cir. 2000) (citing
Monell, 436 U.S. at 694). Because Plaintiff fails to plausibly suggest that his rights were violated
by a custom or policy of Hamilton County, as would be required to hold Defendant Franklin liable
in an official capacity, Plaintiff’s official-capacity claim against Defendant Franklin should be
dismissed. See Monell, 436 U.S. at 690; Graham ex rel. Estate of Graham v. Cnty. of Washtenaw,
358 F.3d 377, 383 (6th Cir. 2004) (“A plaintiff asserting a section 1983 claim on the basis of a
municipal custom or policy must ‘identify the policy, connect the policy to the [County] itself and
show that the particular injury was incurred because of the execution of that policy.’”) (quoting
Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
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Nor has Plaintiff stated a claim for relief against the HCJC. Under § 1983, “[e]very person
who, under the color of any statute . . . subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983 (emphasis added). A county jail
is not a “person” subject to suit under § 1983. Marbry v. Corr. Med. Servs., No. 99-6706, 2000
WL 1720959, at *2 (6th Cir. Nov. 6, 2000); see also Aladimi, 2012 WL 292587, at *7 (finding that
the Hamilton County Justice Center was not a person subject to suit). And even if the Court were
to liberally construe the claims against the HCJC as against Hamilton County itself, Plaintiff does
not allege he was injured pursuant to a County custom or policy. See Monell., 436 U.S. at 694.
Therefore, the Amended Complaint should be dismissed as against the HCJC.
IV. CONCLUSION
At this juncture, Plaintiff may PROCEED on his Fourteenth Amendment excessive-force
claim against Defendant Sgt. Franklin in his individual capacity, based on the events of January 9,
2024, at the HCJC. But Plaintiff’s official-capacity claims against Defendant Franklin should be
DISMISSED without prejudice, and Plaintiff’s claims against the HCJC should be DISMISSED
with prejudice, for failure to state a claim upon which relief can be granted. 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b).
IT IS THEREFORE RECOMMENDED THAT:
1. The Court DISMISS WITHOUT PREJUDICE Plaintiff’s official-capacity
claims against Defendant Franklin and DISMISS WITH PREJUDICE Plaintiff’s claims
against the HCJC for failure to state a claim upon which relief can be granted. 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b).
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IT IS THEREFORE ORDERED THAT:
1. Plaintiff MAY PROCEED on his Fourteenth Amendment excessive-force claim
against Defendant Sgt. Franklin in his individual-capacity.
2. According to a 2021 agreed procedure between the Court and the Hamilton County
Prosecutor’s Office, the United States Marshal shall serve a copy of Plaintiff’s Amended
Complaint (Doc. 11), the initial summons provided by Plaintiff (Doc. 1-3), a waiver of service of
process form, and this Order and Report and Recommendation upon Defendant Sgt. Franklin by
regular U.S. Mail, with such mail directed to the following address:
Steve Simon, Esq.
Chief Assistant Prosecuting Attorney
Hamilton County Prosecutor’s Office
230 E. 9th Street, Suite 4000
Cincinnati, OH 45202
3. Plaintiff shall inform the Court promptly of any changes in his address which may
occur during the pendency of this lawsuit.
Date: June 3, 2025 /s/ Kimberly A. Jolson
Kimberly A. Jolson
United States Magistrate Judge
PROCEDURE ON OBJECTIONS
Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file specific,
written objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS
after being served with a copy thereof. 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 DAYS after being served
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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).
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