Denise Coley v. Lucas County, Ohio

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0200p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DENISE M. COLEY, Administrator of the estate of ┐

Carlton L. Benton; DECARLOS A. BENTON; M. L., a │

minor; CARLA BENTON, │

│ Nos. 14-3134/3136/3137

Plaintiffs-Appellees,

│

>

│

v.

│

│

LUCAS COUNTY, OHIO, et al., │

Defendants, │

│

│

JOHN E. GRAY (14-3134); JAY M. SCHMELTZ (14- │

3136); JAMES A. TELB (14-3137), │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:09-cv-00008—Vernelis K. Armstrong, Magistrate Judge.

Argued: December 2, 2014

Decided and Filed: August 21, 2015

Before: SILER, SUTTON, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Joseph S. Simpson, SHUMAKER, LOOP & KENDRICK, LLP, Toledo, Ohio, for

Appellant in 14-3134. Thomas J. Antonini, ROBISON, CURPHEY & O’CONNELL, Toledo,

Ohio, for Appellant in 14-3136. Dennis A. Lyle, ANSPACH MEEKS ELLENBERGER LLP,

Toledo, Ohio, for Appellant in 14-3137. Aparesh Paul, LEVIN & ASSOCIATES CO., L.P.A.,

Cleveland, Ohio, for Appellees. ON BRIEF: Joseph S. Simpson, SHUMAKER, LOOP &

KENDRICK, LLP, Toledo, Ohio, for Appellant in 14-3134. Thomas J. Antonini, ROBISON,

CURPHEY & O’CONNELL, Toledo, Ohio, for Appellant in 14-3136. Dennis A. Lyle,

ANSPACH MEEKS ELLENBERGER LLP, Toledo, Ohio, for Appellant in 14-3137. Aparesh

Paul, Joel Levin, LEVIN & ASSOCIATES CO., L.P.A., Cleveland, Ohio, for Appellees.

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Nos. 14-3134/3136/3137 Coley, et al. v. Lucas Cnty., et al. Page 2

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OPINION

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JANE B. STRANCH, Circuit Judge. The family of Carlton Benton, a pretrial detainee,

was told that he died of natural causes in the Lucas County jail in 2004. This case, alleging

claims under 42 U.S.C. § 1983 and state law, was brought in 2008 when family members

discovered that jail employees had shoved Benton to a cement floor, held him in a chokehold to

the point of unconsciousness, left him to die in his cell, and then engaged in a cover-up with the

aid of their Sheriff. The district court refused to grant the motions to dismiss of Officer Jay

Schmeltz, Sergeant John Gray, and Sheriff James Telb, denying their requests for qualified and

state statutory immunity. Defendants appeal. We find that these appeals of the denial of

immunity lack any meritorious basis. We AFFIRM the district court’s orders denying Schmeltz,

Gray, and Telb qualified and statutory immunity and return the case to the district court for

expeditious handling.

I. BACKGROUND

A. Facts Alleged in the Complaint

Lucas County took Carlton Benton into custody in February 2004 as a pretrial detainee.

In late May, Benton was taken to St. Vincent’s Hospital in Toledo, Ohio, where he received

medical treatment for seizures. In preparing to transfer Benton back to the Lucas County jail

from the hospital, Lucas County employees, including Officer Jay M. Schmeltz, disengaged

Benton from various kinds of medical equipment and the restraints that bound him to the hospital

bed. During this process, Benton resisted, and Lucas County employees sprayed him with

chemicals and repeatedly struck his torso and upper body. Benton was subdued, placed in

handcuffs, the handcuffs were secured to a belly chain, and he was placed in leg irons. He was

then seated in a wheelchair, loaded into a van, and transported back to the Lucas County Jail

without further incident.

According to the operative complaint—the Second Amended Complaint—here is what

happened next. Plaintiffs allege that Schmeltz was “frustrated, agitated, and angry” as a result of

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the altercation with Benton at the hospital. Upon arrival at the jail, Schmeltz lifted Benton from

the wheelchair and escorted him through the jail’s booking area. In his shackled state, Benton

could only “shuffle” with “short and unbalanced steps.” While in the booking area, Schmeltz,

“with malice, and in bad faith, with the intention of causing harm and injury,” “shoved and

struck” Benton from behind, “causing him to fall straight to the [cement] floor,” “striking his

head on the wall” as he fell. Benton was powerless to break his fall. Sergeant John E. Gray and

other officers in the booking area witnessed this event.

Schmeltz then pulled Benton up from the floor and, with the help of Gray and others,

escorted Benton to the second floor medical unit. Once inside a cell, Schmeltz, Gray, and other

deputies placed Benton on a bed, handcuffed him to the bed, and attempted to remove his many

restraints. During this process, Benton began to “squirm around, struggle, and moved his legs,

making it more difficult to get a hold of him to remove the restraints.” Although he was moving,

Benton was “restrained and not posing any threat” to anyone present. Allegedly “frustrated,

agitated and angry” that it was difficult to remove handcuffs, belly chain and leg irons, Gray

grasped Benton from behind and placed him in a chokehold. When Gray applied the chokehold,

Benton stopped resisting and gasped for air, “making choking and other gurgling sounds.”

Hearing the gurgling sounds, another officer told Gray to stop choking Benton, but Gray would

not release the chokehold. A few seconds later, he went limp and became unconscious. Once

Benton was unconscious, the officers removed his restraints. Gray then instructed the other

officers to leave the cell. Benton lay “silent, motionless, [and] limp.”

Although aware that Benton was unconscious, Gray knowingly and intentionally failed to

inform any of the nurses or other medical personnel working just outside the medical cell that he

had used a chokehold on Benton or that he was unconscious. Gray later admitted that he heard

Benton gasping and gurgling and knew that he should have told medical personnel about what

had occurred. Approximately ten minutes later, a Lucas County deputy on regular rounds

entered Benton’s cell and discovered that he was unconscious and not breathing. County

personnel then transported Benton by ambulance to St. Vincent’s Hospital. There he was

pronounced brain dead on June 1, 2004 and removed from life support the following day.

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Gray and Schmeltz made false entries in official reports chronicling the incidents that

related to Benton’s death, intentionally and knowingly failing to state that Schmeltz had shoved

Benton to the cement floor of the jail or that Gray had choked Benton to a state of

unconsciousness, leading to his death. Based on these falsifications, the Lucas County Coroner’s

office initially declared Benton’s death to be the result of complications caused by seizures and

thus “natural” causes.

In 2008, approximately four years after Benton’s death in 2004, Plaintiffs first learned

that he had died from injuries inflicted on him while in the custody of Lucas County. The FBI

began an investigation into Benton’s death, during which Gray, Schmeltz, and Sheriff Telb made

false statements to FBI agents to impede their investigation. Gray falsely stated that he observed

Benton “breathing and moving after the chokehold.” Schmeltz denied to FBI agents that he saw

Gray use a chokehold on Benton. Telb, who knew of all the events leading to Benton’s death,

denied to FBI agents that Gray used a chokehold on Benton, and made false statements to federal

authorities. During the course of the federal investigation, the coroner declared Benton’s death a

homicide. Plaintiffs allege that the actions of Gray and Schmeltz in assaulting and strangling

Benton were proximate causes of his death.

B. Procedural Background

Plaintiffs filed their original complaint against Lucas County and named Defendants in

state court on December 9, 2008, asserting § 1983 violations of Benton’s rights under the Fourth,

Eighth, and/or Fourteenth Amendments and various state law claims. The case was removed to

federal court. In the meantime, the United States Department of Justice filed criminal

indictments against the individual defendants in the Northern District of Ohio. The Magistrate

Judge stayed this case during the criminal proceedings.

A jury found Gray guilty of three counts, including deprivation of rights under color of

law pursuant to 18 U.S.C. § 242 for acting with deliberate indifference to Benton’s serious

medical needs, and two counts of falsifying documents in violation of 18 U.S.C. § 1519. Gray

was sentenced to 36 months of imprisonment, and his conviction and sentence were affirmed.

United States v. Gray, 692 F.3d 514 (2012), cert. denied, 133 S. Ct. 990 (2013).

Nos. 14-3134/3136/3137 Coley, et al. v. Lucas Cnty., et al. Page 5

A jury found Schmeltz guilty of one count of falsifying a document in violation of

18 U.S.C. § 1519 for failing to mention his shove of Benton or Gray’s use of a chokehold in the

“Corrections Officer Report” documenting the events leading up to Benton’s death. Schmeltz

was sentenced to twelve months and one day’s imprisonment. His conviction was affirmed.

United States v. Schmeltz, 667 F.3d 685 (6th Cir. 2011).

When the present case was reopened in October 2009, Gray, Schmeltz, and Telb filed

motions for judgment on the pleadings and/or motions to dismiss, claiming qualified immunity

and statutory immunity, among other defenses. The district court filed multiple orders granting

the motions in part and denying them in part. Specifically, the district court denied Schmeltz’s

and Gray’s motions as to the § 1983 claims of excessive force and failure to provide medical

treatment on the grounds that they were not entitled to qualified immunity. The court also

denied the motions of Schmeltz and Gray on the claim of assault and battery and Gray’s motion

as to the wrongful death claim, finding both ineligible for statutory immunity under Ohio Rev.

Code § 2744.02. The court denied Telb qualified immunity on the claim that he failed to

sufficiently train and supervise employees regarding the use of excessive force. Based on the

state law claims against Schmeltz and Gray, the court also denied Telb’s motion on liability

imputed by virtue of Ohio Rev. Code § 311.05, which creates an exception from statutory

immunity where a sheriff “ratifies the neglect of duty or misconduct in the office of the deputy.”

Gray, Schmeltz and Telb appeal the district court’s denial of qualified immunity

regarding Plaintiffs’ excessive force and failure to train claims. Specifically, they argue that the

district court employed the wrong standard—a Fourth Amendment reasonableness standard—in

assessing the excessive force claims, that Plaintiffs failed to allege sufficient injury regarding

Schmeltz’s shove of Benton, and that Gray’s use of a chokehold did not violate a clearly

established constitutional right. Telb also argues that the court erred in denying him statutory

immunity, and that Plaintiffs did not allege facts sufficient to show that he “ratified” the behavior

of Schmeltz and Gray.

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II. ANALYSIS

A. Standard of Review

We review de novo a district court’s denial of a motion to dismiss that raises either a

qualified immunity defense or a statutory immunity defense under Ohio law. Sutton v. Metro.

Gov’t of Nashville & Davidson Cnty., 700 F.3d 865, 871 (6th Cir. 2012); Chesher v. Neyer, 477

F.3d 784, 796 (6th Cir. 2007). We likewise review de novo a motion for judgment on the

pleadings, using the same standard as motions to dismiss. Sensations, Inc. v. City of Grand

Rapids, 526 F.3d 291, 295 (6th Cir. 2008). We construe the Plaintiffs’ complaint in the light

most favorable to them, and accept the complaint’s allegations as true, drawing all reasonable

inferences in favor of the Plaintiffs. Crugher v. Prelesnik, 761 F.3d 610, 613 (6th Cir. 2014).

The defendant has the burden to show that the plaintiff failed to state a claim for relief. Id. To

survive a motion to dismiss, a complaint must present facts that, if accepted as true, sufficiently

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when a

plaintiff “pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

B. Qualified Immunity Claims

To determine whether qualified immunity applies, we use a two-step analysis:

“1) viewing the facts in the light most favorable to the plaintiff, we determine whether the

allegations give rise to a constitutional violation; and 2) we assess whether the right was clearly

established at the time of the incident.” Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013);

see also Saucier v. Katz, 533 U.S. 194, 201 (2001). We address the claims of excessive force

and the claim of a failure to train in turn.

1. Excessive Force

Plaintiffs’ complaint more than sufficiently alleges conduct by Schmeltz and Gray that

violated Benton’s constitutional right to be free of excessive force. The complaint raised claims

under “the Fourth, Eighth, and/or Fourteenth Amendments,” but on appeal all parties agree that

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the Fourteenth Amendment governs Plaintiffs’ claims because he was a pretrial detainee at the

time of his injury and death.

Excessive force claims can be resolved under the Fourth, Eighth and Fourteenth

Amendments—the applicable amendment depends on the plaintiff’s status at the time of the

incident: a free citizen in the process of being arrested or seized; a convicted prisoner; or

someone in “gray area[s]” around the two. Burgess, 735 F.3d at 472; Phelps v. Coy, 286 F.3d

295, 299 (6th Cir. 2002). When a free citizen claims that a government actor used excessive

force during the process of an arrest, seizure, or investigatory stop, we perform a Fourth

Amendment inquiry into what was objectively “reasonable” under the circumstances. Graham v.

Connor, 490 U.S. 386, 396 (1989); Lanman v. Hinson, 529 F.3d 673, 680 (6th Cir. 2008). These

Fourth Amendment protections extend through police booking until the completion of a probable

cause hearing. Aldini v. Johnson, 609 F.3d 858, 866-67 (6th Cir. 2010). When convicted

prisoners bring claims of excessive force, we turn to the Eighth Amendment, which forbids the

“unnecessary and wanton infliction of pain” that constitutes “cruel and unusual punishment,” and

specifically conduct that is malicious and sadistic. Hudson v. McMillian, 503 U.S. 1, 5, 7 (1992)

(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)); United States v. Budd, 496 F.3d 517, 531-

32 (6th Cir. 2007). To violate the Fourteenth Amendment rights of free citizens not subject to

search or seizure, the conduct of law enforcement officials must “shock[] the conscience,”

whether it be “malicious and sadistic” behavior in the context of a “fluid” and “dangerous”

situation, or “deliberate indifference” when there is “reasonable opportunity to deliberate” before

taking action. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001) (internal quotation

marks omitted); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-53 (1998).

Until very recently, it was unclear which standard applied to excessive force claims

brought by pretrial detainees. The Supreme Court has recently clarified, however, that when

assessing pretrial detainees’ excessive force claims we must inquire into whether the plaintiff

shows “that the force purposely or knowingly used against him was objectively unreasonable.”

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). The inquiry is highly fact-dependent,

and must take into account the “perspective of a reasonable officer on the scene, including what

the officer knew at the time, not with the 20/20 vision of hindsight.” Id. It should also account

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for “the ‘legitimate interests that stem from [the government’s] need to manage the facility in

which the individual is detained,’” id., and defer when appropriate to “‘policies and practices that

in th[e] judgment’ of jail officials ‘are needed to preserve internal order and discipline and to

maintain institutional security.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979)).

The Court further instructs:

Considerations such as the following may bear on the reasonableness or

unreasonableness of the force used: the relationship between the need for the use

of force and the amount of force used; the extent of the plaintiff’s injury; any

effort made by the officer to temper or to limit the amount of force; the severity of

the security problem at issue; the threat reasonably perceived by the officer; and

whether the plaintiff was actively resisting.

Id. This list is not exclusive. Kingsley also reaffirms that pretrial detainees cannot be subjected

to “the use of excessive force that amounts to punishment,” id. (quoting Graham, 490 U.S. at

395 n.10) precisely because they “cannot be punished at all,” id. at 2475.

In light of this Fourteenth Amendment standard and the facts alleged in the complaint,

Plaintiffs’ excessive force claims should proceed. The alleged conduct of Schmeltz and Gray

was knowing or purposeful and “objectively unreasonable,” and each used force that

“amount[ed] to punishment” of Benton. Id. at 2473. Taking into account all of the

circumstances of that day, including the legitimate interests of law enforcement in preserving

order and discipline, the allegations that Schmeltz and Gray inflicted gratuitous pain on Benton

while he was handcuffed, culminating in his death, establish valid claims that both officers

violated Benton’s Fourteenth Amendment rights. We review the claims as to each defendant

separately.

a. Officer Jay M. Schmeltz

Plaintiffs plausibly allege that Schmeltz violated Benton’s constitutional right to be free

from excessive force. We have long recognized that a spontaneous assault by a prison guard on

an inmate is grounds for an Eighth Amendment excessive force claim. Pelfrey v. Chambers,

43 F.3d 1034, 1037 (6th Cir. 1995); Moore v. Holbrook, 2 F.3d 697, 700-01 (6th Cir. 1993)

(holding that an inmate’s allegations that he was handcuffed in his cell and then beaten by prison

guards would constitute a valid Eighth Amendment claim). Similarly, where an arrestee poses

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no threat to others and is not trying to escape, an “unprovoked and unnecessary blow” violates

the Fourth Amendment. McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988). We have

held that throwing an unresisting, handcuffed arrestee to the floor and subsequently banging his

head against the floor constitutes excessive force. Phelps v. Coy, 286 F.3d 295, 301-02 (6th Cir.

2002); Dugan v. Brooks, 818 F.2d 513, 516-17 (6th Cir. 1987) (holding that spontaneously

striking an arrestee on the head, knocking him to the floor and causing serious injury, would

violate his Fourth Amendment rights); Adams v. Metiva, 31 F.3d 375, 385 (6th Cir. 1994)

(holding that continuing to spray mace in the face of an incapacitated arrestee would constitute

excessive force).

Because the Fourteenth Amendment, like the Fourth Amendment, must look to whether

the force used was objectively unreasonable, the inquiry in both contexts focuses on the force

itself rather than the injury. We have long held that a plaintiff may “allege use of excessive force

even where the physical contact between the parties did not leave excessive marks or cause

extensive physical damage.” Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir. 1999).

“[T]he ‘extent of the injury inflicted’ is not ‘crucial to an analysis of a claim for excessive force

in violation of the Fourth Amendment.’” Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394,

407 (6th Cir. 2009) (quoting Baskin v. Smith, 50 F. App’x 731, 737 n.2 (6th Cir. 2002)). We

look instead to whether “gratuitous violence” has been inflicted. Pigram ex rel. Pigram v.

Chaudoin, 199 F. App’x 509, 513 (6th Cir. 2006) (citing Phelps, 286 F.3d at 302). Even so,

“[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s

chambers, violates the Fourth Amendment,” and the same principle applies to the Fourteenth

Amendment. Graham, 490 U.S. at 396.

Schmeltz’s shove of Benton—who was handcuffed, in a belly chain and leg irons—so

that he fell and hit the wall and cement floor, violated Benton’s rights under the Fourteenth

Amendment. Schmeltz argues that Plaintiffs did not allege sufficient injury, but the complaint

alleges that the shove caused him to fall “striking his head on the wall and falling straight to the

floor,” “unable in any way to break his fall.” Moreover, we look primarily to whether gratuitous

force was applied. Such force is clearly alleged here: without provocation, Schmeltz shoved the

fully restrained Benton hard enough that he fell straight down onto cement, powerless to help

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himself. Schmeltz’s argument that he was acting in a good faith effort to restore discipline rings

hollow as nothing in the facts alleged suggests a loss of discipline or order at the time the shove

occurred. On the contrary, the complaint suggests that Benton was hardly in any condition to

cause a disruption, having recently been treated for seizures and then beaten and maced by Lucas

County employees—including Schmeltz—at the hospital, from which he was brought to the jail

in a wheelchair, fully restrained and subdued. Plaintiffs also allege that Schmeltz’s action was

borne of his “frustration” with Benton’s prior resistant behavior in the hospital, leading to a

reasonable inference that the shove was the kind of gratuitous punishment that the Fourteenth

Amendment forbids.

Having determined that Schmeltz violated Benton’s constitutional rights, we now turn to

whether the law regarding the use of gratuitous force on a restrained detainee is clearly

established. To satisfy this second prong of the qualified immunity analysis, “[t]he contours of

the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Clemente v. Vaslo, 679 F.3d 482, 490 (6th Cir. 2012) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The key inquiry is whether a defendant

claiming qualified immunity “was on notice that his alleged actions were unconstitutional.”

United Pet Supply, Inc. v. City of Chattanooga, 768 F.3d 464, 485 (6th Cir. 2014) (quoting

Grawey v. Drury, 567 F.3d 302, 313 (6th Cir. 2009)). The inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.” Clemente, 679 F.3d at

490 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). We look first to Supreme Court

decisions, then Sixth Circuit case law in order to determine if the right claimed was

clearly established when the events occurred. Clemente, 679 F.3d at 490. The plaintiff “has the

burden of showing that a right is clearly established,” while the defendant “carries the burden of

showing that the challenged act was objectively reasonable in light of the law existing at the

time.” Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).

At the time of the incident, pretrial detainees had a clearly established right not to be

gratuitously assaulted while fully restrained and subdued. See Pelfrey, 43 F.3d at 1037. Under

the Fourteenth, Fourth, or Eighth Amendments, assaults on subdued, restrained and nonresisting

detainees, arrestees, or convicted prisoners are impermissible. Id.; Phelps, 286 F.3d at 301-02

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(citing cases). The facts alleged show that Schmeltz assaulted the fully restrained Benton so that

he fell and hit his head on the cement floor. Schmeltz then attempted to cover up the assault by

filing false reports and lying to federal investigators after Benton’s death. These actions

reasonably lead us to conclude that Schmeltz violated clearly established law and was “on notice

that his alleged actions were unconstitutional.” United Pet Supply, Inc., 768 F.3d at 485.

Schmeltz’s argument that his actions did not violate clearly established law fails.

b. Sergeant John E. Gray

Plaintiffs have also plausibly alleged that Gray violated Benton’s constitutional rights.

The use of a chokehold on an unresisting—and even an initially resistant—detainee violates the

Fourteenth Amendment. Valencia v. Wiggins, 981 F.2d 1440, 1447 (5th Cir. 1993). It is a

constitutional violation for law enforcement officials to use violent physical force “totally

without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quoting Rhodes v.

Chapman, 452 U.S. 337, 346 (1981)). A chokehold rendering an arrestee unconscious and

causing his death constitutes excessive force under Fourth Amendment standards. United States

v. Livoti, 196 F.3d 322, 327 (2d Cir. 1999); Papp v. Snyder, 81 F. Supp. 2d 852, 857 (N.D. Ohio

2000) (holding that “[n]o reasonable officer would use a choke hold and a carotid sleeper hold on

a suspect who is both handcuffed and restrained by four other individuals”); see also Haynes v.

Marshall, 887 F.2d 700, 703 (6th Cir. 1989) (holding that qualified immunity was clearly

inappropriate where prison officials beat a disruptive inmate in need of anti-psychotic medication

and left him to die).

Gray’s actions violated Benton’s Fourteenth Amendment rights. Having had time to

consider his options while escorting Benton to the medical cells, and while attempting to remove

Benton’s multiple restraints, Gray chose to act in a manner that Plaintiffs plausibly allege was

the product of frustration and anger, designed to punish and cause harm rather than a good faith

effort to maintain discipline. Although Benton admittedly began to “squirm around” and

struggle, at the point Gray choked him Benton had been placed on the bed, handcuffed to it, and

was surrounded by multiple officers. In that situation, force as extreme as a chokehold was

excessive and impermissible, and by the point Gray heard Benton choke and gurgle and another

officer urged Gray to release the chokehold, Gray’s conduct was clearly objectively

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unreasonable. Gray’s actions after the fact—telling other officers to leave the medical cell after

Benton was rendered unconscious and his restraints removed, failing to seek medical help, and

refusing to mention his use of a chokehold on incident reports—also lead to the inference that

Gray was aware he had violated the law and sought to avoid liability. Where, as here, a law

enforcement official inflicts pain and punishment—even on a resistant detainee—to the point of

death and then leaves that individual to die, he violates that detainee’s constitutional rights. See

Haynes, 887 F.2d at 703.

Having determined that Gray violated Benton’s constitutional rights, we turn again to

whether the right in question—to be free from deadly physical force such as a chokehold while

fully restrained—was clearly established, providing Gray notice that “what he [was] doing

violate[d] that right.” Clemente, 679 F.3d at 490 (6th Cir. 2012) (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). Our cases make it abundantly clear that it is constitutionally

impermissible to abuse a shackled prisoner to the point of death and then leave him to die in his

cell. Haynes, 887 F.2d at 703. Chokeholds are objectively unreasonable where an individual is

already restrained or there is no danger to others. Livoti, 196 F.3d at 327; Papp, 81 F. Supp. 2d

at 857.

Gray’s actions as described in the complaint violated clearly established law: Gray put

Benton in a chokehold and continued to choke him even after Gray heard him gurgling and

another officer told Gray to stop, and Gray left Benton in his cell without medical care. Gray’s

efforts to hide evidence of his actions, by filing false reports and lying to federal investigators,

reasonably lead to the conclusion that he knew he had violated the law. In short, like Schmeltz,

Gray behaved like someone who “was on notice that his alleged actions were unconstitutional.”

United Pet Supply, Inc., 768 F.3d at 485. Gray’s argument that his actions did not violate clearly

established law thus also fails.

2. Failure to Train and Supervise

Telb’s appeal of this § 1983 claim addresses only the allegation that he individually failed

to train and supervise his staff, particularly Schmeltz and Gray. Telb argues that Schmeltz and

Gray satisfy both prongs of the qualified immunity test—their actions did not violate Benton’s

constitutional right to be free from excessive force and the right claimed was not clearly

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established. Telb’s entire analysis is based on the argument that because Schmeltz and Gray are

eligible for qualified immunity for their actions, it necessarily follows that he, too, should be

eligible for qualified immunity regarding the failure to train and supervise claim. Because we

find that Schmeltz and Gray do not satisfy the requirements for qualified immunity, Telb’s

argument fails. We also review the claim against him directly.

A § 1983 claim of personal liability for a failure to train and supervise differs from a

§ 1983 claim against a municipality for a failure to train and supervise. In order to establish

personal liability for a failure to train and supervise

[t]here must be a showing that the supervisor encouraged the specific incident of

misconduct or in some other way directly participated in it. At a minimum, a

§ 1983 plaintiff must show that a supervisory official at least implicitly

authorized, approved or knowingly acquiesced in the unconstitutional conduct of

the offending subordinate.

Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995) (emphasis in original) (quoting

Bradley v. Bellamy, 729 F.2d 416, 421 (6th Cir. 1984)).

Plaintiffs allege that Telb had a duty to train and supervise employees of the Sheriff’s

Department to avoid the use of excessive force and to ensure that the medical needs of persons in

the Sheriff’s custody were met. They then allege that Telb failed to train and supervise staff

regarding the proper use of force and failed to investigate properly allegations of excessive force.

This failure to train and supervise specifically included a failure to train on “the use of a

chokehold and the injuries derived therefrom” which action resulted in Benton’s “injuries and

death.” Plaintiffs also allege that Telb had “full knowledge of the assault on Carlton Benton . . .

but nonetheless intentionally and deliberately made false statements to federal officials about

[his] knowledge of Defendant Schmeltz’s assault and Defendant Gray’s chokehold and the

deliberate failure to provide medical attention to Benton.” These allegations are sufficient to

show that Plaintiffs have established a valid claim under § 1983, insofar as they have shown that

Telb “at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional

conduct of the offending subordinate” when he helped Schmeltz and Gray to cover up their

unconstitutional actions. Taylor, 69 F.3d at 81 (quoting Bradley, 729 F.2d at 421). Given

Schemltz and Gray’s constitutional violations as well as the sufficiency of Plaintiffs’ allegations

Nos. 14-3134/3136/3137 Coley, et al. v. Lucas Cnty., et al. Page 14

in establishing Telb’s potential personal liability for his failure to train and supervise under

§ 1983, Telb has not shown entitlement to qualified immunity on this claim.

C. Statutory Immunity for Ohio State Law Claims

Finally, the complaint also alleged a number of state law claims against Schmeltz and

Gray—excessive force, failure to provide medical care, assault and battery, and wrongful

death—that are imputed to Telb by virtue of Ohio Rev. Code § 311.05. Telb challenges the

district court’s denial of statutory immunity to him for those claims.

Claims brought against Telb in his official capacity are the equivalent of claims brought

against the county as a government entity. Chesher, 477 F.3d at 796-97. There is a three-tiered

analysis involved in determining whether a political subdivision is immune from liability under

Ohio law. Range v. Douglas, 763 F.3d 573, 582-83 (6th Cir. 2014) (citing Lambert v. Clancy,

927 N.E.2d 585, 588 (Ohio 2010)); Elston v. Howland Local Schs., 865 N.E.2d 845, 848 (Ohio

2007). First, the court must determine if an entity qualifies for the general grant of immunity

under Ohio Rev. Code § 2744.02: “a political subdivision is not liable in damages in a civil

action for injury, death, or loss to person or property allegedly caused by any act or omission of

the political subdivision or an employee of the political subdivision in connection with a

governmental or proprietary function.” Ohio Rev. Code Ann. § 2744.02(A)(1). Federal courts

have held that sheriffs and sheriff’s deputies are considered employees of the county, which is a

political subdivision of the state. Ohio Rev. Code Ann. § 2744.01(F); Sanford v. Cnty. of Lucas,

No. 3:07 CV 3588, 2009 WL 723227, at * 1, 8 (N.D. Ohio, Mar. 16, 2009) (citing cases).

Second, the court must determine if any of the exceptions to immunity apply. Lambert,

927 N.E.2d at 588. The exceptions include injuries, death or losses caused by various forms of

negligence, or “when civil liability is expressly imposed upon the political subdivision by a

section of the Revised Code.” Ohio Rev. Code Ann. § 2744.02(B)(1)-(5).

Third, if an exception applies, the court assesses whether any of the defenses to liability

listed in Ohio Rev. Code § 2744.03 apply, enabling immunity to be reinstated. Lambert,

927 N.E.2d at 588. Whether an individual is personally liable is also assessed under Ohio

Revised Code § 2744.03(A)(6), which provides that an employee is personally immune from

Nos. 14-3134/3136/3137 Coley, et al. v. Lucas Cnty., et al. Page 15

liability unless “(a) [t]he employee’s acts or omissions were manifestly outside the scope of the

employee’s employment or official responsibilities; (b) [t]he employee’s acts or omissions were

with malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil liability is

expressly imposed upon the employee by a section of the Revised Code.” Id. (quoting Ohio

Rev. Code § 2744.03(A)(6)).

The district court found that Plaintiffs pled facts sufficient to allege that Telb was liable

under a separate Ohio statute, Ohio Rev. Code § 311.05, and therefore the exception to immunity

stated under Ohio Rev. Code § 2744.02(B)(5) applies. Ohio Rev. Code § 311.05 provides that

“[t]he sheriff shall only be responsible for the neglect of duty or misconduct in office of any of

his deputies if he . . . ratifies the neglect of duty or misconduct in office of the deputy.”

“[R]atification can be shown by inaction or silence where the principal is fully informed of all of

the material facts to the agent’s action.” Amato v. Heinika Ltd., No. 84479, 2005 WL 110441, at

*1, 2 (Ohio Ct. App. Jan. 20, 2005). An individual has ratified an act if he is aware of the

agent’s act and “takes a position inconsistent with non-affirmance. . . .” Id. “Evidence of

tortious wrongdoing on the part of the deputies must be established before liability can be

imputed to the sheriff.” Smith v. Redecker, No. 08CA33, 2010 WL 541355, at *1, 10 (Ohio Ct.

App., Feb. 4, 2010) (per curiam).

Telb argues that Plaintiffs’ state law claims fail because Plaintiffs did not restate the

pertinent factual allegations in the specific causes of action. Telb Br. at 29. But neither Iqbal

nor Twombly requires such a crabbed reading of a complaint—rather, the language in both

opinions refers repeatedly to the “complaint” in full. See Iqbal, 556 U.S. at 679-684; Twombly,

550 U.S. at 554-570. Moreover, under each cause of action, Plaintiffs included a statement by

which they “reincorporate[d] and reallege[d] preceding statements and allegations as if expressly

set forth herein.” The court’s function is to construe a complaint in order “to do justice,” Fed. R.

Civ. P. 8(e), and in doing so it must look to the complaint “as a whole” to see if it provides

“sufficient notice” of the claim. Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001).

See also Argueta v. U. S. Immigration & Customs Enforcement, 643 F.3d 60, 74 (3d Cir. 2011)

(“We also recognize that Iqbal made it clear that courts must determine whether the complaint as

a whole contains sufficient factual matter to state a facially plausible claim. . . .”) (emphasis

Nos. 14-3134/3136/3137 Coley, et al. v. Lucas Cnty., et al. Page 16

added); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007) (holding that

heightened pleading standards of the Private Securities Litigation Reform Act require courts to

“consider the complaint in its entirety” and examine “all of the facts alleged, taken collectively”).

For these reasons, we reject the argument that Telb constructs based on the structure of the

complaint.

As discussed above, the complaint as a whole alleges facts sufficient to state claims that

Schmeltz and Gray engaged in “tortious wrongdoing”: specifically, “wrongful death” and

“assault and battery.” Redecker, 2010 WL 541355, at *10. Plaintiffs allege that Telb “had full

knowledge of the assault on [] Benton, which led to his death, but nonetheless intentionally and

deliberately made false statements to federal officials” concerning both Schmeltz’s shove of

Benton and Gray’s chokehold, as well as the failure to provide medical attention to Benton.

Plaintiffs allege Telb falsely denied to FBI officials that Gray used a chokehold on Benton. The

allegations of the complaint as a whole provide “fair notice” to Defendant not only of the “nature

of the claim, but also grounds on which the claim rests.” Twombly, 550 U.S. at 555 n.3 (internal

quotation marks omitted).

Plaintiffs have thus alleged facts sufficient to state a claim that Telb “ratified” the

conduct of his subordinates and therefore is potentially officially liable under Ohio Revised Code

§ 311.05. For this same reason, Telb is also ineligible for any defense to personal liability

available under Ohio Rev. Code § 2744.03(A)(6)(c) (providing that an employee is personally

immune from liability unless “[c]ivil liability is expressly imposed upon the employee by a

section of the Revised Code”). Lambert, 927 N.E.2d at 588; Shoup v. Doyle, 974 F. Supp. 2d

1058, 1089-90 (S.D. Ohio 2013). In light of this finding, there is no need for the court to address

whether Plaintiffs alleged facts sufficient to state a claim that Telb’s conduct also amounted to

“bad faith.”

III. CONCLUSION

The facts alleged by Plaintiffs are more than sufficient to state claims that the conduct of

Schmeltz, Gray, and Telb violated Benton’s Fourteenth Amendment rights. At the time of the

events alleged in the complaint, those rights were clearly established. We therefore AFFIRM the

district court’s orders denying qualified immunity to Defendants Schmeltz, Gray, and Telb

Nos. 14-3134/3136/3137 Coley, et al. v. Lucas Cnty., et al. Page 17

regarding Plaintiffs’ claims of excessive force and failure to train. We also AFFIRM the district

court’s orders denying statutory immunity under Ohio law to Telb. We remand the case to the

district court for expeditious handling in light of the delay entailed by these appeals.