New

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOELLE NEW,

ADMINISTRATOR OF THE

ESTATE OF JAMIE

OVERSTREET, :

Case No. 2:24-cv-2253

Plaintiff,

Chief Judge Sarah D. Morrison

Magistrate Judge Kimberly A.

v.

Jolson

:

LUKE STICKLE,

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant Officer Luke Stickle’s Motion to

Dismiss. (Mot., ECF No. 67.) Plaintiff responded (Resp., ECF No. 69), and Officer

Stickle replied (Reply, ECF No. 71). For the reasons below, the Motion is

GRANTED.

I. BACKGROUND

On the evening of August 23, 2023, the Worthington Police Department

received a call that Jamie Overstreet was in violation of a protection order issued

against him by his estranged wife. (Am. Compl. ¶¶ 9–10, ECF No. 63.) Worthington

Police passed the information along to the Columbus Police Department. (Id. ¶ 10.)

Officers arrived in the area and located Mr. Overstreet leaving in his vehicle. (Id.

¶ 11.) After refusing to stop his vehicle, a brief pursuit ensued before it was called

off. (Id. ¶¶ 12–13.) A short time later, a police helicopter spotted Mr. Overstreet’s

vehicle and officers reengaged in a second pursuit until he crashed and fled on foot.

(Id. ¶¶ 13–14.)

Officer Andrew Durr followed Mr. Overstreet down a path between buildings

in the Marion Square Apartment complex and Officer Luke Stickle positioned

himself by a parked car situated parallel to the path. (Id. ¶¶ 15–17.) The officers

ordered Mr. Overstreet to “stop” and “freeze,” but he ignored their commands and

kept running. (Id. ¶¶ 18–19.) As Mr. Overstreet ran past the parked car, Officer

Stickle yelled “gun” before shooting at least five times. (Id. ¶¶ 19–22.) Officer

Stickle was the only officer who fired his weapon. (Id. ¶ 24.) Mr. Overstreet was

shot in his upper-right back and later died from his injuries. (Id. ¶¶ 24, 29.)

Ms. New, the administrator of Mr. Overstreet’s estate, asserts six claims

against Officer Stickle: a § 1983 claim for unconstitutional seizure and excessive use

of deadly force, and state-law claims for wrongful death, survivorship, negligence,

intentional infliction of emotional distress (IIED), and assault and battery. Officer

Stickle now moves to dismiss the negligence and IIED claims.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal alteration and quotations omitted). A complaint which falls short of

the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. 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. The

plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Id. (citing Twombly, 550 U.S. at 555.) “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. In reviewing a motion to dismiss, the Court “construe[s] the complaint

in the light most favorable to the plaintiff[.]” DirecTV, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007). Additionally, in reviewing such a motion a court “may consider

the Complaint and any exhibits attached thereto, public records, items appearing in

the record of the case and exhibits attached to defendant’s motion to dismiss so long

as they are referred to in the Complaint and are central to the claims contained

therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).

III. ANALYSIS

A. Count IV: Negligence

Officer Stickle argues that Ms. New has failed to state a claim for negligence

because the Complaint alleges only intentional conduct, which cannot give rise to a

negligence claim. (Mot., PAGEID# 308–10.)

“By definition, negligent acts are not intentional.” Guyan Int’l, Inc. v. Pro.

Benefits Adm’rs, Inc., No. 5:10-cv-823, 2013 WL 1338194, at *23 (N.D. Ohio Mar. 29,

2013) (quoting Blanton v. Alley, No. 02CA685, 2003 WL 2152546, at *5 (Ohio Ct.

App. Mar. 18, 2003)). The inverse is also true: intentional acts are not negligent.

Thus, intentional conduct cannot give rise to a negligence claim. May v. McGrath,

No. 2:11-cv-0839, 2013 WL 1401371, at *9 (S.D. Ohio Apr. 5, 2013) (Deavers, M.J.)

(“[C]onduct that could give rise to an assault and battery claim cannot serve as the

basis of a negligence claim.” (citing Robinson v. Brown, No. 88-77-052, 1989 WL

13584, at *2 (Ohio Ct. App. Feb. 21, 1989))).

Ms. New’s negligence claim relies solely on intentional conduct. For example,

Officer Stickle pursued Mr. Overstreet on foot, stationed himself by a parked car

nearby, ordered Mr. Overstreet to “stop” and “freeze,” yelled “gun,” and fired his

weapon (without warning) at Mr. Overstreet at least five times. (Am. Compl. ¶¶ 15–

22.) Ms. New relies on the same intentional conduct in her Response, arguing that

Officer Stickle breached his duty of care “when he shot at Jamie Overstreet while

Jamie Overstreet was jogging away from him[.]” (Resp., PAGEID# 320.) As such,

her claim is one for assault and battery—not negligence. See, e.g., Bowen v. Sidney

Police Dep’t, No. 3:23-cv-375, 2024 WL 1003632, at *6 (S.D. Ohio Mar. 8, 2024)

(Litkovitz, M.J.); see Love v. City of Port Clinton, 524 N.E. 2d 166, 167 (Ohio 1988)

(“A person is subject to liability for battery when he acts intending to cause a

harmful or offensive contact, and when a harmful contact results.”).

Accordingly, the Motion is GRANTED as to Count IV.

B. Count V: Intentional Infliction of Emotional Distress

Ms. New abandoned her IIED claim in response to Officer Stickle’s Motion.

(Resp., PAGEID# 316.) The Motion is therefore GRANTED as to Count V.

IV. CONCLUSION

For the above reasons, Officer Stickle’s Motion to Dismiss (ECF No. 67) is

GRANTED. Counts IV and V of Ms. New’s Complaint are DISMISSED without

prejudice.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON, CHIEF JUDGE

UNITED STATES DISTRICT COURT