Zura v. City Of Cincinnati

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LANDON ZURA, :

:

Plaintiff, : Case No. 1:24-cv-377

:

vs. : Judge Jeffery P. Hopkins

:

CITY OF CINCINNATI, et al.,

:

:

Defendants.

:

OPINION & ORDER

How much harm can a taser cause? Quite a lot. Just ask Plaintiff Landon Zura

(“Plaintiff” or “Zura”). In September 2023, police officers from the City of Cincinnati Police

Department pursued Zura for an alleged motor vehicle infraction. During that pursuit, Officer

Russell Ludwig discharged his taser, striking Zura in the back. Zura plummeted face-first into

the pavement, suffering severe facial and head injuries as a result of the fall. Zura brings this

case against three Defendants: Officer Ludwig, the City of Cincinnati, and Chief of Police

Teresa Theetge (collectively, “Defendants”). Defendants seek to dismiss all of Zura’s claims.

I. BACKGROUND

In the early hours of September 29, 2023, police officers from the City of Cincinnati

learned of a motor vehicle accident involving a parked car. Compl., Doc. 1, ¶ 16. There were

no reported injuries. Id. Zura left his vehicle at the scene—only to be pursued by law

enforcement shortly thereafter. Id. ¶ 16–17. Officer Andrew Davis encountered Zura first, and

Zura fled on foot. Id. ¶ 17. Two other officers, including Officer Ludwig, responded to the

scene to search for Zura. Id. ¶ 18. Officer Ludwig ultimately found Zura and pursued him on

foot as he fled down the street. Id. ¶ 18–20. According to Zura, although he was unarmed and

posed no reasonable threat to officers or the public, Officer Ludwig deployed his taser. Id.

¶ 22–24. The taser struck Zura in the back and caused him to fall face-first to the pavement.

Id. ¶ 25. As a result of the fall, Zura suffered multiple, severe facial fractures and head injuries

including lost teeth. Id. ¶ 26. This incident was captured on body cam video. Id. ¶ 28.

II. STANDARD OF REVIEW

Defendants seek to dismiss Zura’s Complaint for failure to state a claim under Rule

12(b)(6). A party may move to dismiss a complaint for “failure to state a claim under which

relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed. R.

Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must include “only 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). This, however, requires “more than labels and conclusions [or] a formulaic

recitation of the elements of a cause of action,” and the “[f]actual allegations must be enough

to raise a right to relief above the speculative level.” Id. at 555. “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). Indeed, under the plausibility standard set forth in Twombly and Iqbal, courts play an

important gatekeeper role, ensuring that claims meet a plausibility threshold before

defendants are subjected to the potential rigors (and costs) of the discovery process.

“Discovery, after all, is not designed as a method by which a plaintiff discovers whether he

has a claim, but rather a process for discovering evidence to substantiate plausibly-stated

claims.” Green v. Mason, 504 F. Supp. 3d 813, 827 (S.D. Ohio 2020).

In deciding a motion to dismiss, the district court must “construe the complaint in the

light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable

inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).

In doing so, the district court “need not accept as true legal conclusions or unwarranted

factual inferences.” Gregory v. Shelby Cnty., Tenn., 220 F.3d 433, 446 (6th Cir. 2000).

III. LAW & ANALYSIS

Based on the events that occurred in the early hours of September 29, 2023, Zura

asserts three claims: (1) an excessive use of force claim against all Defendants, (2) an assault

and battery claim in violation of Ohio law against all Defendants, and (3) a failure to train

and supervise claim against Defendants City of Cincinnati and Chief Theetge. Doc. 1. The

Court will now consider each of Zura’s claims against the arguments asserted in Defendants’

Motion to Dismiss (Doc. 6).

A. Plaintiff has failed to plausibly allege a violation of his constitutional rights.

Zura alleges that Officer Ludwig used excessive force when he deployed his taser to

stop Zura from fleeing. Doc. 1, ¶¶ 38–45. Zura extends his excessive force claim to Cincinnati

Chief of Police Theetge and the City of Cincinnati under a municipal liability theory. Id.

Defendants, however, counter by arguing that they are entitled to qualified immunity. Doc.

6, PageID 25–27.

Dismissal on the basis of qualified immunity at the pleading stage is disfavored. Siefert

v. Hamilton Cnty., 951 F.3d 753, 761 (6th Cir. 2020). “But this is only a ‘general preference,’

not an absolute one.” Id. (quoting Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019)). More

recently the Sixth Circuit has held that “a district court cannot defer a decision on qualified

immunity merely because it must make the decision on a Rule 12 motion.” Saalim v. Walmart,

Inc., 97 F.4th 995, 1003 (6th Cir. 2024). Along these same lines the Sixth Circuit reasoned

that “[b]ecause qualified immunity is a defense not just to liability but to having to litigate the

suit itself, a district court must resolve the question as soon as possible.” Id. When balancing

the interests served by qualified immunity, some claims, particularly insubstantial ones,

should be resolved before discovery. Pearson v. Callahan, 555 U.S. 223, 231 (2009). To decide

whether that is the case here, the Court must consider (1) whether Zura has plausibly alleged

a violation of his constitutional rights, and (2) whether that constitutional right was clearly

established. Id. at 227. If a plaintiff fails to satisfy either step identified under Pearson, “then

qualified immunity shields the government officer from civil damages.” Courtright v. City of

Battle Creek, 839 F.3d 513, 518 (citing Pearson, 555 U.S. at 236). In this instance, Zura’s claim

does not make it past the first step in the two-part inquiry.

Whether Zura has plausibly alleged a violation of his constitutional rights begins with

an analysis of the claim measured against the protections offered under the Fourth

Amendment. The Fourth Amendment guarantees the right of every person in our country to

be free from unreasonable seizures, which includes protection from use of excessive force.

Thomas v. City of Columbus, 854 F.3d 361, 365 (6th Cir. 2017). Excessive force is not easily

defined, but the Sixth Circuit often sorts taser cases “based on ‘[a] simple dichotomy’—was

the suspect actively resisting or not?” Perez v. Simpson, 83 F.4th 1029, 1031 (6th Cir. 2023)

(quoting Rudlaff v. Gillispie, 791 F.3d 638, 642 (6th Cir. 2015)). If that answer is yes, then use

of a taser is not excessive force. But what qualifies as active resistance? The Sixth Circuit has

made clear that fleeing from officers does constitute active resistance, see VanPelt v. City of

Detroit, 70 F.4th 338, 340 (6th Cir. 2023)), meaning that it is reasonable, and not excessive

force, when an officer tases an individual fleeing the scene where an offense has taken place

and refuses to submit to an investigatory stop or arrest. See Brown v. Giles, 95 F.4th 436, 439

(6th Cir. 2024); Cockrell v. City of Cincinnati, 468 F. App’x 491, 496 (6th Cir. 2012).

Here, Zura admits that he fled from officers twice. Doc. 1, ¶¶ 17, 20. Zura argues,

however, that rather than stopping him from fleeing by using a taser, Officer Ludwig should

have stopped his pursuit and located him at his residence at a later time given that the

underlying circumstances involved a nonviolent motor vehicle accident. Doc. 7, PageID 46–

48. But in doing so, Zura ignores the elephant in the room—that is, he fails to acknowledge

that the Sixth Circuit has held that tasing a suspect actively resisting arrest by fleeing from a

crime scene, is not excessive force. Perez, 83 F.4th at 1031; Brown, 95 F.4th at 439. Because

Zura was observed fleeing the scene of an accident, prompting the officers to give chase and

thus, actively resisting arrest, Officer Ludwig did not use excessive force when deploying his

taser. Thus, because under Sixth Circuit precedent Officer Ludwig did not use excessive force,

he did not violate Zura’s constitutional rights. As a result, Defendant Ludwig is entitled to

qualified immunity for his actions. See Pearson, 555 U.S. at 231. For sake of argument, even

assuming that Zura plausibly alleged a violation of his constitutional rights, Zura has failed

to plausibly allege that the right to be free from excessive force through use of a taser while

fleeing was clearly established. To the contrary, the Sixth Circuit has said, “[o]ur cases firmly

establish that it is not excessive force for the police to tase someone (even multiple times) when

the person is actively resisting arrest.” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015).

Active resistance includes disobeying an officers’ command to stop. Id. at 643.

Further, since Zura has failed to allege a violation of his constitutional rights, his

excessive force claim against the remaining Defendants, Chief Theetge and the City of

Cincinnati, must also be dismissed. See Roell v. Hamilton Cnty. Bd. of Comm’rs, No. 1:14-cv-

637, 2016 WL 4363112 (S.D. Ohio Aug. 16, 2016) (holding that because plaintiff failed to

establish an underlying constitutional violation, the § 1983 claims against the sheriff and the

city failed); see also Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir. 2004) (“A

municipality or county cannot be liable under § 1983 absent an underlying constitutional

violation by its officers.”).

B. Plaintiff has failed to plausibly allege a Monell claim.

To establish his claim that the City of Cincinnati is liable for the purported unlawful

actions of its officers, Zura “must demonstrate that the alleged federal violation occurred

because of a municipal policy or custom.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Zura can make this showing in

one of four ways: “(1) the existence of an illegal official policy or legislative enactment; (2)

that an official with final decision making authority ratified illegal actions; (3) the existence

of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance

or acquiescence of federal rights violations.” Id. Here, Zura alleges a policy of inadequate

training and supervision relative to the use of tasers. But as discussed above, Zura has not

plausibly alleged a constitutional violation. It then follows that he cannot maintain a failure

to train or supervise claim because “[t]here can be no liability under Monell without an

underlying constitutional violation.” Sensabaugh v. Halliburton, 937 F.3d 621, 630 (6th Cir.

2019) (quoting Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014)); see also VanPelt, 70 F.4th

at 341 (rejecting the plaintiff’s Monell claim absent a constitutional violation).

Even if he had plausibly alleged a constitutional violation, Zura has not shown that

the City of Cincinnati and Chief Theetge’s failure to train officers on the proper use of tasers

“amounts to deliberate indifference” as required under Monell. City of Canton v. Harris, 489

U.S. 378, 388 (1989). To meet his burden, Zura must offer evidence that shows “prior

instances of unconstitutional conduct demonstrating that the [municipality] ha[d] ignored a

history of abuse and was clearly on notice that the training in this particular area was deficient

and likely to cause injury.” Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010) (quoting

Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). He has failed to do so.

C. Plaintiff has failed to plausibly allege a state-law claim for assault and battery.

Beyond the constitutional claims advanced above, Zura also asserts a claim for assault

and battery under Ohio law. This claim, however, fares no better than the others because “in

the context of excessive force claims, state law claims for assault and battery ‘rise and fall’

with the federal excessive-force claims.” Williams v. Collins, No. 15-cv-337, 2017 WL 1196114,

at *7 (S.D. Ohio Mar. 31, 2017) (citing D’Agastino v. City of Warren, 75 F. App’x 990, 995 (6th

Cir. 2003)). Further, Ohio law makes clear that “only in cases where excessive force is used,

that is, force going clearly beyond that which is reasonably necessary to make the arrest, can

such force be claimed an assault and battery by the person arrested.” Schweder v. Baratko, 103

Ohio App. 399, 403 (8th Dist. 1957). As previously noted, Zura has failed to plausibly allege

a constitutional claim predicated on the excessive use of force cognizable under existing case

law. VanPelt, 70 F.4th at 340. As such, Zura’s assertion that Defendants “intentionally and

maliciously applied and threatened to apply unlawful and unnecessary force against [him]”

rings hollow. Compl., Doc. 1, ¶ 47; see also Ohio Rev. Code § 2744.03(A)(6)(b); Hagans v.

Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 511 (6th Cir. 2012). Ohio’s statutory immunity

therefore applies. Zura’s state-law claim must be dismissed.

D. The Court declines to grant Plaintiff leave to amend his Complaint.

Zura requests, in an alternative to dismissal, that he be granted leave to amend his

Complaint. It is within this Court’s discretion to grant leave and in fact, courts should freely

grant leave when justice so requires. Fed. R. Civ. P. 15(a)(2). At the same time, however,

when a plaintiff requests leave, they shall do so with particularity. Liberty Legal Found. v. Nat'l

Democratic Party of the USA, Inc., 875 F. Supp. 2d 791, 803 (W.D. Tenn. 2012).

Here, Zura requests leave to “clarify the claims brought in this case with specific

reference to 42 U.S.C. § 1983.” Doc. 7, PageID 61-62. This barebones request, set forth in

Zura’s opposition to Defendants’ Motion to Dismiss, fails to meet the pleading standard

typically employed by district courts in our circuit, vis-a-vis, the proposed amended complaint

must be well grounded in facts and supported by examples. See Evans v. Pearson Enters., 434

F.3d 839, 853 (6th Cir. 2006) (finding no abuse of discretion in denying leave to amend where

plaintiff requested leave “in a single sentence without providing grounds or a proposed

amended complaint to support [his] request”). Accordingly, Zura’s request for leave to amend

his Complaint is denied.

IV. CONCLUSION

For these reasons, Defendants’ Motion to Dismiss (Doc. 6) is GRANTED.

IT IS SO ORDERED.

August 4, 2025 Fae YO Lia

effery) P AAopkins

United States District Judge