Streck

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

LEVESTER SMITH, : Case No. 3:22-cv-00203

:

Plaintiff, : Magistrate Judge Caroline H. Gentry

: (by full consent of the parties)

vs.

:

:

ROB STRECK, SHERIFF,

:

Defendant. :

DECISION AND ORDER

Plaintiff Levester Smith, who is proceeding without the assistance of counsel, filed

this civil rights lawsuit to seek damages relating to an incident that occurred in July 2020

at the Montgomery County Jail. The sole remaining defendant in the case, Montgomery

County Sheriff Rob Streck, has filed a Motion for Summary Judgment (Doc. No. 44) on

the two remaining counts in Plaintiff’s Amended Complaint. The motion has been fully

briefed. (Doc. Nos. 49, 52.) For the reasons set forth below, the Court GRANTS

Defendant’s Motion for Summary Judgment, awards judgment in favor of Defendant and

against Plaintiff, and ORDERS that this case be terminated on the Court’s docket.

I. BACKGROUND

Plaintiff alleges that he was injured while he was in custody at the Montgomery

County Jail. (Amended Complaint, Doc. No. 7 & Answer, Doc. No. 33 at ¶¶ 7, 8, 12.)

The injuries allegedly occurred when officers attempted to remove rings from Plaintiff’s

hands, which were cuffed behind his back. (Id. at ¶¶ 7-18.) The Court previously

summarized Plaintiff’s allegations as follows:

On July 28, 2020, Plaintiff was in custody at the Montgomery County Jail.

[Amended Complaint, Doc. No. 7] at PageID 19. Plaintiff then wore

several rings on his fingers. Id. Unidentified “police officer [D]efendants”

attempted to remove the rings from Plaintiff’s fingers but were having

difficulty doing so. Id. Plaintiff asked for permission to remove the rings

himself. Id. at PageID 20. The officers refused and continued trying to

remove the rings, causing Plaintiff pain and discomfort. Id. Eventually, the

officers forced Plaintiff to the ground and Plaintiff’s face began bleeding.

Id. He was offered a napkin to stop the bleeding, but no other assistance

was provided. Id. Plaintiff was eventually allowed to remove his rings

without interference. Id. at PageID 21.

Notably, Plaintiff had surgery on his groin area “only days before” this

incident, which exacerbated his preexisting pain from that surgery. Id. at

PageID 20. Shortly after being released from incarceration, Plaintiff sought

medical treatment for these injuries. Id. at PageID 21. He filed this lawsuit

on July 28, 2022. See Doc. No. 1.

(Motion to Dismiss (“MTD”) Decision, Doc. No. 16, PageID 65.)

Plaintiff’s original Complaint (Doc. No. 1) was filed with the assistance of counsel

against Defendant Streck, four unknown officers, and Montgomery County, Ohio. (Id.)

Count One (Section 1983 claim for violations of constitutional rights) and Count Two

(state-law claim for assault and battery) were filed against Defendant Streck and the

unknown officers. Count Three (Section 1983 claim for unconstitutional policies or

customs) was filed against Montgomery County. (Id.)

After Plaintiff’s counsel passed away, Plaintiff filed an Amended Complaint

(which is now the operative complaint) without the assistance of counsel. (Doc. No. 7.)

The Amended Complaint asserts essentially the same claims and was filed against

Defendant Streck and five named correctional officers. (Id. at PageID 18-23.)

In 2024, the Court issued a decision that dismissed some of the claims in the

Amended Complaint. (Decision, Doc. No. 16.) The Court dismissed all of the claims

against the five individual officers on the grounds that they were filed too late:

Plaintiff’s claims against Defendants Mead, Dell, O’Daniel, Lee, and Eaton

are time-barred and should be dismissed. The statute of limitations for the

§ 1983 excessive force claim expired July 28, 2022 – two years after the

incident occurred on July 28, 2020. The statute of limitations for the assault

and battery claim expired on July 28, 2021 – one year after the incident

occurred. Because these defendants were not named as such—or had reason

to believe they would be named as such—until July 11, 2023 [when the

Amended Complaint was filed], the claims against them must be dismissed.

See City of Akron, 476 F. App’x at 69 (citing Cox v. Treadway, 75 F.3d

230, 240 (6th Cir. 1996)).

(Id. at PageID 68.) The Court also dismissed Count III, the municipal liability claim, on

the grounds that it failed to state a claim upon which relief can be granted. (Id. at PageID

69-70 [“The municipal liability claim against Defendant Streck is DISMISSED.”].)

The Court did, however, allow Plaintiff’s excessive force and assault-and-battery

claims against Defendant Streck to proceed. (Decision, Doc. No. 16 at PageID 70.)

Defendant Streck has moved for summary judgment on these claims. (MSJ, Doc. No. 44.)

Plaintiff filed a response brief, which he signed before a notary. (Response, Doc. No. 49.)

Defendant then filed a reply brief. (Reply, Doc. No. 52.)

II. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure permits parties to move for

summary judgment on one or more claims or defenses in an action. Fed. R. Civ. P. 56(a).

The Court “shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Id. (emphasis added). A dispute is “genuine” if “the evidence is such that a reasonable

jury could return a verdict for the non[-]moving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A fact is “material” if its resolution “might affect the outcome

of the suit under the governing law.” Id.

If a party asserts that a fact cannot be disputed or, conversely, that it is genuinely

disputed, then it must support its assertion with citations to evidentiary materials (e.g.,

depositions, documents, affidavits, declarations, stipulations, admissions or interrogatory

answers). Fed. R. Civ. P. 56(c)(1)(A). The Court may only consider admissible evidence,

which does not include unsworn statements. Fed. R. Civ. P. 56(c)(2) & (4); Tenneco

Auto. Operating Co. v. Kingdom Auto Parts, 410 F. App’x 841, 847 (6th Cir. 2010).

Notably, a plaintiff’s pro se status does not exempt him from his burden to respond with

admissible evidence. Viergutz v. Lucent Techs., 375 F. App’x 482, 485 (6th Cir. 2010).

The party moving for summary judgment bears the initial burden of showing the

absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). The moving party meets this burden when it shows that the

lack of evidence supporting an essential element of the non-moving party’s case is so

significant that “no reasonable jury could find for the nonmoving party.” Buetenmiller v.

Macomb Cnty. Jail, 53 F.4th 939, 943 (6th Cir. 2022). However, when asserting qualified

immunity at the summary-judgment stage, a defendant is relieved of the threshold burden

on that issue, and the plaintiff must instead affirmatively prove that the defendant is not

subject to qualified immunity. Fry v. Robinson, 678 F. App’x 313, 318 (6th Cir. 2017).

If the moving party meets its initial burden, then the non-moving party cannot rest

on its pleadings, but instead must point to admissible evidence that creates a genuine

issue of material fact on each element of its claims or defenses. Anderson, 477 U.S. at

248-50; Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993). The non-moving party

must show that more than “a mere scintilla of evidence” supports each such element.

CareToLive v. FDA, 631 F.3d 336, 340 (6th Cir. 2011). If the non-moving party does not

either properly support its assertions of fact or address the moving party’s assertions of

fact with admissible evidence, then the Court may consider the moving party’s cited

evidence to be undisputed. Fed. R. Civ. P. 56(e).

When ruling on a motion for summary judgment, the Court is required to draw all

reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). Although the Court is only required to

consider the materials cited by the parties, it may also consider other evidentiary

materials in the record. Fed. R. Civ. P. 56(c)(3). However, the Court “has no duty when

deciding a motion for summary judgment to scour the record for evidence that supports a

plaintiff’s claims.” Abdulsalaam v. Franklin Cty. Bd. of Comm’rs, 637 F. Supp. 2d 561,

576 (S.D. Ohio 2009).

III. EVIDENTIARY RECORD

There is limited admissible evidence in the record before this Court. Defendant

supported his Motion for Summary Judgment with a Declaration made under penalty of

perjury, in which he states in relevant part:

5. I had no contact with the Plaintiff in Case No. 3:22-cv-00203,

Levester Smith, on July 28, 2020, nor have I had any contact with

this person on any other date. I have not had any contact with the

Plaintiff other than through the pleadings filed in the docket of this

case.

6. On July 28, 2020, I was not in the jail and did not witness the

specific interaction between Plaintiff and the other named officers.

7. I did not direct, authorize, approve or knowingly acquiesce to the

specific conduct between the Sheriff Deputies and Plaintiff on July

28, 2020.

(Streck Decl., Doc. No. 44-1 at PageID 180-81.)

The Court may also consider the following admissions in Defendant’s Answer

(Doc. No. 33) to certain allegations in the Amended Complaint (Doc. No. 7):

7. Sheriff Streck denies that Plaintiff was incarcerated on July 28,

2020, at the Montgomery County Jail. Plaintiff was in custody at the

Jail on July 29, 2020.

8. Sheriff Streck admits that when Plaintiff arrived at the Jail on July

29, 2020, and was taken to the receiving room for his custodial

search incident to his booking, Plaintiff was wearing rings on his

fingers….

12. Sheriff Streck admits that when Plaintiff arrived at the Jail on July

29, 2020, and was taken to the receiving room for his custodial

search incident to his booking, he was handcuffed with his hands

behind his back….

15. Sheriff Streck admit[s] that because of Plaintiff’s combativeness and

noncompliance with corrections officers on July 29, 2020, he was

the subject of an action response incident where Plaintiff sustained a

minor cut or abrasion to his face….

18. Sheriff Streck admits that after Plaintiff became compliant following

the corrections officers’ action response, Plaintiff was permitted to

facilitate removal of his rings….

(Answer, Doc. No. 33, PageID 148-49.)

The Court notes that although Plaintiff did present his version of the facts, he did

not do so in a form that constitutes admissible evidence. The Amended Complaint is not

admissible evidence because it is not verified or signed under penalty of perjury under 28

U.S.C. § 1746.1 Plaintiff did not attach evidentiary materials—such as a sworn affidavit

or a declaration made under penalty of perjury—to his Response (Doc. No. 49). Although

the Response was signed and notarized, the notary’s statement indicates only that

Plaintiff “acknowledged” the Response (id. at PageID 198), and it “does not purport to be

made under oath or contain any other elements of an affidavit or declaration under

penalty of perjury.” Fraker v. Marysville Exempted Vill. Sch., 696 F. Supp. 2d 887, 894

(S.D. Ohio 2010) (striking notarized but unsworn affidavit). Finally, although the

Response refers to items that might constitute admissible evidence—such as an Inmate

Handbook, Sheriff Department Policies, and video of the incident (id. at PageID 193-194,

195, 197)—neither party provided those items to the Court for its review.

Nevertheless, the facts that are relevant to the issues raised in Defendant’s Motion

for Summary Judgment are undisputed. The parties agree that Plaintiff was in custody at

the Montgomery County Jail (whether on July 28 or July 29, 2020); wore rings on his

fingers; had his hands cuffed behind his back; was subjected to certain force that resulted

in an injury to his face; and was eventually permitted to remove his rings. Although the

1 See El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (noting that a complaint signed under penalty of

perjury pursuant to § 1746 would “carr[y] the same weight as would an affidavit for the purposes of

summary judgment.”); Stokes v. Ohio Truck Sales, LLC, 633 F. Supp. 3d 1023, 1029 (N.D. Ohio 2022)

(“plaintiff has not signed her complaint under penalty of perjury; therefore, it is not a verified complaint,

and I cannot consider its allegations as evidence.”)

parties likely dispute the nature, cause and extent of Plaintiff’s injuries—and certainly

dispute whether the force used was constitutionally excessive or constitutes an assault

and battery—those disputes are not relevant to the arguments raised in the Motion for

Summary Judgment. It is therefore unnecessary to give the parties the opportunity to

supplement the motion and briefs with admissible evidence. See Fed. R. Civ. P. 56(e)(1).

IV. ANALYSIS

Defendant, who is the Montgomery County Sheriff, asserts that he is entitled to

summary judgment as a matter of law on Plaintiff’s claims, which are based on the

alleged actions of Sheriff’s Deputies at the Jail. (MSJ, Doc. No. 44.) Defendant argues

that because he was not present during the incident involving Plaintiff, he cannot be held

liable for the actions of those officials. (Id. at PageID 175-76 & 178; Streck Decl. at ¶¶ 5-

6.) Defendant also argues that he is entitled to summary judgment because Plaintiff did

not identify a municipal policy that caused the allegedly unlawful actions (Doc. No. 44 at

PageID 174-176); that he cannot be held liable under a theory of supervisory liability (id.

at PageID 176); and that he is protected from liability by the doctrines of qualified

immunity and political subdivision immunity (id. at PageID 176-178).

A. Defendant Is Entitled to Summary Judgment on Plaintiff’s Section

1983 Excessive Force Claim.

Given the undisputed evidence in the record, the Court concludes that Defendant

is entitled to summary judgment on Plaintiff’s Section 1983 excessive force claim, for

two reasons. First, Defendant cannot be held liable simply because of his alleged role as

employer or supervisor of the Jail officials. Second, there is no evidence that Defendant

had any personal involvement with the alleged use of excessive force against Plaintiff.

1. Defendant cannot be held liable under a theory of respondeat

superior for the actions of his subordinates.

Plaintiff argues that Defendant should be held liable “for his [Deputies’] negligent

performance within the scope of his employment and authority, within the Montgomery

County Jail.” (Response, Doc. No. 49 at PageID 197.) In other words, Plaintiff asserts

that Defendant should be legally responsible for the actions of the Deputies who

interacted with Plaintiff at the Jail, given Defendant’s position as Sheriff and his alleged

role as the employer or supervisor of the Deputies at the Montgomery County Jail.

This argument fails as a matter of law. Plaintiff’s theory rests upon the doctrine of

respondeat superior, which “hold[s] an employer or principal liable for the employee’s or

agent’s wrongful acts committed within the scope of the employment or agency.” Black’s

Law Dictionary (12th ed. 2024). However, “[i]t is well-settled that government officials

may not be held liable for the unconstitutional conduct of their subordinates under the

theory of respondeat superior.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir.

2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)) (cleaned up). In other words,

“a supervisor cannot be held liable simply because he or she was charged with overseeing

a subordinate who violated the constitutional rights of another.” Id. (citing Gregory v.

City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006)). See also Polachek v. Roberts, No.

1:22-cv-742, 2023 WL 3493987, at *4 (S.D. Ohio May 17, 2023), report and

recommendation adopted, 2023 WL 6348388 (S.D. Ohio Sept. 28, 2023) (noting that the

officer overseeing the jail “cannot be held responsible for everything that occurred there

simply because he is in charge of the staff” who allegedly violated plaintiff’s rights). As a

matter of law, Defendant’s mere status as the employer or supervisor of Deputies at the

Jail does not make him liable for any allegedly unlawful actions of those Deputies.

The cases cited by Plaintiff do not lead to a different result. In King v. Sheriff of

Franklin Cnty., 38 Mass. App. Ct. 925, 646 N.E.2d 417 (1995), a state appeals court

rejected a Section 1983 claim against a sheriff as time-barred under state law, stating:

No allegations are directly leveled against the sheriff in the complaint.

However, even if the complaint is generously read as implicitly seeking to

hold the sheriff accountable for the alleged misdeeds of his employees, the

action is nonetheless time-barred . . .

Id. at 417. However, the state court did not either conclude that a timely claim would

have been successful against the sheriff or address the merits of such a claim.

Further, in Batchelder v. Young, 2006-Ohio-6097 (11th Dist.), the state appeals

court held that “Sheriff Altiere may not be held responsible for any of the alleged conduct

of the officers.” Id. at ¶¶ 30-31. That court also explained that “a governmental entity

may not be held liable in a suit alleging Section 1983 violations for the acts of its

employees solely based upon respondeat superior or vicarious liability.” Id. at ¶ 33.

Therefore, although the plaintiffs in these two cases argued that a sheriff should be

held liable under a theory of respondeat superior, the courts did not agree. Accordingly,

it is well-established as a matter of law that Plaintiff cannot hold Defendant liable for the

actions of his subordinates under this theory of liability.

2. There is no evidence that Defendant was personally involved

with the alleged actions of his Deputies.

Instead, to hold Defendant liable under Section 1983 for the actions of his

Deputies, Plaintiff must prove that Defendant was “somehow personally involved in the

unconstitutional activity of a subordinate … or at least acquiesced in the alleged

unconstitutional activity of a subordinate.” Wingo v. Tenn. Dept. of Corr., (citing Dunn v.

State of Tenn., 697 F.2d 121, 128 (6th Cir. 1982) and Bellamy v. Bradley, 729 F.2d 416,

421 (6th Cir. 1984). Accord Crawford v. Tilley, 15 F.4th 752, 761 (6th Cir. 2021)

(“plaintiff must show that [the supervisor] at least implicitly authorized, approved or

knowingly acquiesced in the unconstitutional conduct of the offending subordinate.”).

Plaintiff must also plead and prove that there is a “causal connection” between the

allegedly unconstitutional behavior and Plaintiff’s injuries. Crawford, 15 F.4th at 761-62.

The undisputed evidence in the record does not allow Plaintiff to succeed under

this theory of liability. Defendant has declared, under penalty of perjury, that he “did not

direct, authorize, approve or knowingly acquiesce to the specific conduct between the

Sheriff Deputies and Plaintiff on July 28, 2020.” (Streck Decl., Doc. No. 44-1, PageID

180 at ¶ 7.) Defendant argues that given the lack of any evidence to the contrary, the

excessive force claim must be dismissed. (MSJ, Doc. No. 44 at PageID 176.)

The Court agrees. Plaintiff has produced no evidence to dispute Defendant’s

statements made under penalty of perjury or to show that a genuine dispute of fact exists

as to whether Defendant “implicitly authorized, approved, or knowingly acquiesced in

the unconstitutional conduct of the offending officers.” Peatross, 818 F.3d at 242.

Accordingly, the Court concludes that no genuine dispute of fact exists on this issue and

that Defendant is entitled to judgment as a matter of law on Plaintiff’s Section 1983 claim

against Defendant for the excessive use of force.2

C. Defendant Is Entitled to Summary Judgment on Plaintiff’s State-Law

Assault and Battery Claims.

Plaintiff’s state-law assault and battery claims against Defendant fail for similar

reasons. As with his Section 1983 excessive force claim, Plaintiff argues that Defendant

should be held responsible for the alleged assault and battery committed by Deputies at

the Jail. Again, Plaintiff does not claim that Defendant himself committed the alleged

assault and battery or was personally involved with the alleged actions of the Deputies.

Defendant’s potential liability is limited by Section 311.05 of the Ohio Revised

Code, which is titled “Limited liability of sheriff for deputies’ misconduct” and provides:

The sheriff shall only be responsible for the neglect of duty or misconduct

in office of any of his deputies if he orders, has prior knowledge of,

participates in, acts in reckless disregard of, or ratifies the neglect of duty or

misconduct in office of the deputy.

Ohio Rev. Code § 311.05. Here, there is no evidence that Defendant ordered, had prior

knowledge of, participated in, acted in reckless disregard of, or ratified the neglect of

2 The Court need not, and therefore does not, reach the question of whether Defendant is protected by

qualified immunity for this claim. See Bakari v. May, No. 3:10-cv-250, 2011 WL 1743728, at *7 (S.D.

Ohio May 6, 2011) (quoting Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 767, n. 9 (6th

Cir. 2010)) (“A finding that a constitutional violation occurred is required to deny defendants qualified

immunity. Absent any cognizable claim asserting a constitutional violation, the Court need not reach the

issues of qualified immunity.”) (cleaned up); Mays v. City of Dayton, 134 F.3d 809, 813 (6th Cir. 1998)

(“In reviewing a qualified immunity determination, this Court must first determine whether plaintiffs have

stated a claim against the defendant pursuant to 42 U.S.C. § 1983, demonstrating the violation of a

constitutional right. If the court finds no valid claim pursuant to 42 U.S.C. § 1983, the court need not

reach the issue of qualified immunity.”).

duty or misconduct by any Deputy at the Jail. To the contrary, Defendant has declared

under penalty of perjury that he “did not direct, authorize, approve or knowingly

acquiesce to the specific conduct between the Sheriff Deputies and Plaintiff on July 28,

2020.” (Doc. No. 44-1 at PageID 180, ¶ 7.) Defendant has further declared under penalty

of perjury that he “was not in the jail and did not witness the specific interaction between

Plaintiff and the other named officers.” (Id. at ¶ 6.) Plaintiff has produced no evidence to

contradict these statements or to show that a genuine dispute of fact exists on this issue.

Accordingly, the Court concludes that no genuine dispute of fact exists on this issue and

that Defendant is entitled to judgment as a matter of law on Plaintiff’s state-law claims

for assault and battery.3

III. CONCLUSION

For the reasons stated, Defendant Streck’s Motion for Summary Judgment (Doc.

No. 44) is GRANTED. The Court awards judgment in this matter in favor of Defendant

and against Plaintiff. This case shall be TERMINATED upon the Court’s docket.

IT IS SO ORDERED.

/s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

3 The Court need not, and therefore does not, reach the question of whether Defendant Streck is immune

from liability under Ohio Revised Code Sections 2744.02(A)(1) or 2744.03.