Ilya Kovalchuk v. City of Decherd, Tenn.

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0057p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ILYA KOVALCHUK,

│

Plaintiff-Appellant, │

│ No. 23-5229

v. >

│

│

CITY OF DECHERD, TENNESSEE, │

Defendant-Appellee, │

│

│

MATHEW WARD, │

Defendant. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 1:22-cv-00154—Travis Randall McDonough, District Judge.

Argued: December 7, 2023

Decided and Filed: March 18, 2024

Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Russell L. Leonard, Monteagle, Tennessee, for Appellant. Michael T. Schmitt,

ORTALE KELLEY LAW FIRM, Nashville, Tennessee, for Appellee. ON BRIEF: Russell L.

Leonard, Monteagle, Tennessee, for Appellant. Michael T. Schmitt, ORTALE KELLEY LAW

FIRM, Nashville, Tennessee, for Appellee.

GRIFFIN, J., delivered the opinion of the court in which GIBBONS, J., joined. CLAY, J.

(pp. 10–17), delivered a separate dissenting opinion.

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 2

_________________

OPINION

_________________

GRIFFIN, Circuit Judge.

Defendant Matthew Ward, then an off-duty police officer for the City of Decherd,

stopped plaintiff Ilya Kovalchuk, waved his police badge, and held Kovalchuk at gunpoint

without any justification. Kovalchuk alleges that Ward violated his Fourth Amendment rights

and that the City’s failure to investigate Ward’s background before hiring him caused

Kovalchuk’s injuries. Finding that Kovalchuk failed to adequately plead allegations supporting

municipal liability, the district court dismissed the claims against the City. We affirm.

I.

The complaint alleges the following: Kovalchuk was driving his vehicle when Ward

began driving “erratically” behind him and ordered him to pull over. Kovalchuk complied and

exited his vehicle. Ward displayed his City of Decherd Police Department badge, pointed his

handgun at Kovalchuk, and ordered him to get on the ground. Kovalchuk pleaded with Ward to

put down the gun because Ward “was not on duty and was outside of his jurisdiction.” In

response, Ward screamed that he “was always on duty.” Bystanders witnessing the altercation

called the Rutherford County Sheriff’s Department. Sheriff’s deputies arrested Ward, and he

was charged with aggravated assault. Kovalchuk alleges that he has “suffered severe emotional

damage and mental anguish” following this incident.

When Chief Ross Peterson hired Ward, Chief Peterson ordered an investigator “not to

consult [Ward’s] references or previous employment.” Had the investigator done so, Chief

Peterson would have learned that, while employed at the Fort Walton Beach Police Department,

Ward had “to resign due to concerns about his demeanor and professionalism as well as failing to

complete [the department’s] training program in its entirety.” Chief Peterson also would have

discovered that Ward had unspecified “issues” with another police department in Alabama prior

to those with Fort Walton Beach. Although Kovalchuk pleads that a background check “would

have revealed these red flags and prevented” the incident at issue, he alleges neither that a

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 3

thorough background investigation would have changed Chief Peterson’s hiring decision nor that

Ward had violent tendencies.

After the incident, Kovalchuk commenced this 42 U.S.C. § 1983 action against Ward and

the City, alleging numerous federal civil rights and state-law claims. Following the district

court’s entry of a default judgment against Ward and the parties’ stipulation dismissing many of

Kovalchuk’s claims, only his municipal liability claims against the City under Monell v.

Department of Social Services, 436 U.S. 658 (1978), remained. The City moved to dismiss those

claims under Federal Rule of Civil Procedure 12(b)(6), and the district court granted the motion.

Kovalchuk timely appealed.

II.

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege facts that, if

accepted as true, are sufficient “to raise a right to relief above the speculative level,” and to state

a “claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,

570 (2007). That means the “factual content . . . allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ctr. For Bio-Ethical Reform,

Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (internal quotation marks omitted). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted). If a plaintiff does not “nudge[] the[] claim[] across the line from conceivable

to plausible, the[] complaint must be dismissed.” Twombly, 550 U.S. at 570. When considering

a motion to dismiss, we must accept as true all factual allegations but need not accept any legal

conclusions. See Napolitano, 648 F.3d at 369. We review de novo a district court’s grant of a

motion to dismiss. Lipman v. Bush, 974 F.3d 726, 740 (6th Cir. 2020).

III.

A municipality cannot be held liable under § 1983 simply because it employs a tortfeasor,

nor can it be liable “for an injury inflicted solely by its employees or agents.” Monell, 436 U.S.

at 694; see also Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (“We

have consistently refused to hold municipalities liable under a theory of respondeat superior.”).

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 4

Instead, a municipality may be held liable “only for ‘[its] own illegal acts.’” Connick v.

Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

A plaintiff asserting a municipal liability claim under Monell “must connect the employee’s

conduct to a municipal ‘policy’ or ‘custom.’” Gambrel v. Knox Cnty., 25 F.4th 391, 408 (6th Cir.

2022) (quoting Brown, 520 U.S. at 403). To do so, a plaintiff must demonstrate one of the

following: “(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.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013).

A plaintiff then “must also demonstrate that, through its deliberate conduct, the municipality was

the ‘moving force’ behind the injury alleged.” Brown, 520 U.S. at 404.

A.

At issue here is the district court’s dismissal of three Monell claims: (1) failure to train,

(2) failure to supervise, and (3) failure to screen. At oral argument, however, Kovalchuk’s

lawyer conceded that the complaint was deficient on all counts:

Failure to train

THE COURT: Isn’t that fatal to your failure-to-train claim, if you don’t know

what training [Ward] received? I mean, how can you allege plausibly that [the

City is] liable for failure to train when you don’t know what training he had?

PLAINTIFF’S COUNSEL: We don’t know what training he had because we

don’t know when he was hired, and we don’t know what training he missed in

Fort Walton. I have to admit, I think the training theory is gone.

Oral Arg. at 19:53–20:18.

Failure to supervise

THE COURT: How about the failure-to-supervise claim, is that gone too?

PLAINTIFF’S COUNSEL: I think that’s gone. I truly do.

Id. at 20:22–20:28.

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 5

Failure to screen

PLAINTIFF’S COUNSEL: Yes, I read Twombly, and you are correct. That’s

what it says. And I realize that that is why [the complaint] to some extent is

deficient. . . . So all I’m saying is this, is it plausible that Mr. Ward’s background,

if it had been checked would have shown that, in fact, he was not a proper officer

to hire? We think yes.

THE COURT: Not a proper officer, that it’s highly likely that he would have

engaged in this 1983 violative conduct.

PLAINTIFF’S COUNSEL: And we think discovery would show that, your

honor.

THE COURT: So you basically admit to me that your complaint doesn’t have the

facts in there that you really need.

PLAINTIFF’S COUNSEL: We don’t and can’t until we have discovery.

Id. at 11:33–12:41; see also id. at 9:15–29. Kovalchuk has therefore abandoned his appeal. See,

e.g., Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321, 323 (6th Cir. 1967) (“This

latter contention was abandoned by plaintiff at oral argument before this court and it therefore

will not be considered.”); cf. United States v. Duval, 742 F.3d 246, 255 (6th Cir. 2014) (“The

Duvals have waived review of this issue by conceding at oral argument that Marcinkewciz

controls and forecloses their arguments.”).

B.

These concessions aside, because Kovalchuk’s appeal and oral argument focused mainly

on his failure-to-screen claim, we highlight further why this claim was not plausibly pleaded.

For such a claim, a plaintiff must plead sufficient facts supporting the conclusion “that a

municipal [hiring] decision reflects deliberate indifference to the risk that a violation of a

particular constitutional or statutory right will follow the decision.” Brown, 520 U.S. at 411.

Unlike failure-to-train claims, which typically involve a pattern of unconstitutional conduct to

establish deliberate indifference, Burgess, 735 F.3d at 478, failure-to-screen claims usually rest—

as Kovalchuk’s does here—on a single hiring decision, Brown, 510 U.S. at 408–10.1

1

To the extent that Kovalchuk attempts to establish the City’s deliberate indifference by showing a pattern

of unconstitutional conduct in its hiring practices, such a pattern does not exist. Although Kovalchuk alleges that

the City hired Tristan De La Cruz at the Decherd Police Department “without the proper protocols in place to check

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 6

For a “single hiring decision” by a municipal decisionmaker that resulted in a

constitutional violation, which “can be a ‘policy’ that triggers municipal liability,” there exists a

“particular danger that a municipality will be held liable for an injury not directly caused by a

deliberate action attributable to the municipality itself.” Id. at 404, 410; see also Siler v. Webber,

443 F. App’x 50, 55 (6th Cir. 2011) (explaining the “potential pattern exception” created in

Brown). To mitigate this danger, the Supreme Court in Brown set forth a stringent test: “To

prevent municipal liability for a hiring decision from collapsing into respondeat superior

liability,” the plaintiff alleging failure to screen must show that the decisionmaker was

deliberately indifferent to the “known or obvious consequence” of the hiring decision and that

the link between the applicant’s background and the specific constitutional violation was

sufficiently strong. 520 U.S. at 410–12. Simply choosing not to inquire into an applicant’s

background does not amount to deliberate indifference. See id. at 411. “Only where adequate

scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the

plainly obvious consequence of the decision to hire the applicant would be the deprivation of a

third party’s federally protected right can the official’s failure to adequately scrutinize the

applicant’s background constitute ‘deliberate indifference.’” Id. As for the causation element of

deliberate indifference, establishing that a hiring decision would likely result in any

constitutional injury is insufficient to impose municipal liability. Id. at 412. Instead, the plaintiff

must show that “this officer was highly likely to inflict the particular injury suffered by the

plaintiff.” Id.

Brown highlights how this exceedingly rigorous standard operates. There, a police

officer seriously injured Jill Brown during a traffic stop, and she sought to hold the municipality

liable for his use of excessive force. Id. at 399–401. Like Kovalchuk, Brown asserted that, had

the municipality sufficiently investigated the officer’s background—he “had a record of driving

his background,” he does not allege that De La Cruz engaged in unconstitutional conduct, thereby failing to show a

pattern of deliberate indifference by the City to constitutional violations by individuals whom it failed to adequately

screen. Cf. D’Ambrosio v. Marino, 747 F.3d 378, 388 (6th Cir. 2014) (holding that three prior instances of

unconstitutional conduct by county employees were insufficient to establish a pattern of the municipality’s

deliberate indifference to unconstitutional conduct); see also Connick, 563 U.S. at 61 (explaining that a municipality

may be deliberately indifferent only when “policymakers are on actual or constructive notice that a particular

omission in their . . . program causes city employees to violate citizens’ constitutional rights”). At most, Kovalchuk

has shown two instances of negligent hiring by the City—only one of which resulted in unconstitutional conduct—

not a pattern of deliberate indifference to the risk of unconstitutional conduct by its police officers.

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 7

infractions and had pleaded guilty to various driving-related and other misdemeanors, including

assault and battery, resisting arrest, and public drunkenness”—it would not have hired the officer

and therefore her alleged constitutional injuries would not have occurred. Id. at 401. That

record, the Supreme Court concluded, was “inadequate” to hold the county liable:

The fact that [the officer] had pleaded guilty to traffic offenses and other

misdemeanors may well have made him an extremely poor candidate for reserve

deputy. Had [the hiring official] fully reviewed [the officer’s] record, he might

have come to precisely that conclusion. But unless he would necessarily have

reached that decision because [the officer’s] use of excessive force would have

been a plainly obvious consequence of the hiring decision, [the] inadequate

scrutiny of [the officer’s] record cannot constitute “deliberate indifference” to

[Brown’s] federally protected right to be free from a use of excessive force.

Id. at 413–14.2

Similar to Brown, the central question here is whether Chief Peterson’s failure to

adequately screen Ward’s background was the moving force behind Ward’s unconstitutional

misconduct, and, as a result, Kovalchuk’s injury.3 According to the complaint, Chief Peterson,

acting as “the final policymaker for the Decherd Police Department” and “as an agent for the

City of Decherd,” made the “deliberate choice to hire and retain” Ward even though he “should

have known” that Ward was “unfit to be a police officer and to possess a deadly service

weapon.” Chief Peterson “ordered” his investigator not to consult Ward’s background, which

would have revealed that Ward’s previous employer, the Fort Walton Beach Police Department,

asked him to resign due to “concerns about his demeanor and professionalism,” that Ward had

failed to complete a training program at this previous employer, and that Ward had “issues”

during his employment with another police department in Alabama.

2

The fact that Brown ultimately involved a reversal of a jury verdict instead of evaluating the sufficiency of

a complaint does not mean it is not controlling. First, Brown set forth the legal test for when a municipality may be

constitutionally liable for failing to screen an applicant. 520 U.S. at 411–12. Second, there is no debating that

Brown’s high standard applies at the motion-to-dismiss stage. Cf. Pineda v. Hamilton Cnty., 977 F.3d 483, 495 (6th

Cir. 2020).

3

The City does not dispute, at least at the motion-to-dismiss stage, that Ward violated Kovalchuk’s

constitutional rights or that he was acting under color of state law. See Ellison v. Garbarino, 48 F.3d 192, 194 (6th

Cir. 1995) (“A § 1983 claim must satisfy two elements: 1) the deprivation of a right secured by the Constitution or

laws of the United States and 2) the deprivation was caused by a person acting under color of state law.” (internal

quotation marks omitted)).

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 8

These ambiguous allegations, which merely allude to negligent hiring by the City, do not

establish the necessary causal link for Kovalchuk’s deliberate-indifference claim. Kovalchuk

was required to plead facts plausibly alleging that a “known or obvious consequence” of the

hiring decision was that “this officer” (Ward) “was highly likely to inflict the particular injury

suffered by the plaintiff” (being held at gunpoint following an unconstitutional stop). See id. at

410, 412. Allegations of “issues,” “concerns about [Ward’s] demeanor and professionalism,”

and his “fail[ure] to complete [a] training program” fall short of plausibly linking the danger of

hiring Ward to Kovalchuk being held at gunpoint by Ward following an unconstitutional stop.

See id. at 411–12. More specifically, the mere fact that Ward may have been likely—even

exceedingly likely—to commit unconstitutional conduct in general would not have put the City

on notice that Ward would commit the “specific constitutional violation” here. Id. at 410–11

(“The fact that inadequate scrutiny of an applicant’s background would make a violation of

rights more likely cannot alone give rise to an inference that a policymaker’s failure to scrutinize

the record of a particular applicant produced a specific constitutional violation.”). The same can

be said regarding Ward’s predisposition to violence—that alone is insufficient under Brown.

Based simply on the broad allegations in the complaint, Kovalchuk’s failure-to-screen claim is

not plausible. The district court did not err in dismissing this claim.

Kovalchuk contends that discovery would reveal more specific information on Ward’s

background, and in turn, that he was highly likely to engage in the particular conduct at issue.

But a plaintiff cannot use discovery to bridge the gap between a deficient pleading and the

possibility that a claim might survive upon further investigation. See New Albany Tractor, Inc. v.

Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (“[A] plaintiff may not use the

discovery process to obtain the[] [necessary] facts after filing suit.”). Put simply, a plaintiff is

“not entitled to discovery” to determine whether a claim can survive past the pleading stage.

See, e.g., Iqbal, 556 U.S. at 686; accord Estate of Barney v. PNC Bank, Nat’l Ass’n, 714 F.3d

920, 929 (6th Cir. 2013) (“[U]nder Iqbal, a complaint cannot survive a motion to dismiss—and

plaintiffs cannot get discovery—unless the complaint shows that the defendant’s wrongdoing is

plausible, not just possible.”); Patterson v. Novartis Pharms. Corp., 451 F. App’x 495, 498 (6th

Cir. 2011) (“The Supreme Court’s decisions in Twombly and Iqbal do not permit a plaintiff to

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 9

proceed past the pleading stage and take discovery in order to cure a defect in a complaint.”).4

Kovalchuk cannot rely on speculation about what may be learned during discovery to defeat the

City’s motion to dismiss.

C.

Ward’s conduct here was egregious, and he undeniably victimized Kovalchuk. No

citizen should ever have to face being unconstitutionally seized, let alone by an off-duty police

officer who brandishes a firearm in an apparent incident of road rage. While we are sympathetic

to Kovalchuk’s plight, the pitfall in his case is his attempt to hold the City liable for Ward’s

misconduct. Ward’s unconstitutional actions are not automatically attributable to the City, even

if the City negligently hired Ward. To find otherwise would require us to contradict Supreme

Court precedent by permitting the City to potentially be liable for its employee’s actions via

respondeat superior. See Brown, 520 U.S. at 410. And while adequately pleading a municipal

liability claim without the benefit of discovery may be difficult, that task is hardly new. See

Iqbal, 556 U.S. at 686. Perhaps Kovalchuk could have moved to file an amended complaint after

further investigating his claims or in response to the City’s motion to dismiss. But he did not,

and we must analyze the allegations in the complaint before us, which deficiently pleaded a

failure-to-screen claim.

IV.

We affirm the judgment of the district court.

4

True, in a case where we have found that a district court erroneously dismissed a different type of

municipal liability claim, we referenced the plaintiffs’ lack of discovery in our analysis; in that matter, however—

which makes no mention of Iqbal’s “no-discovery” mandate—we focused not on the lack of discovery to support

reviving the Monell claim, but rather on the substance of the complaint at issue. See Lipman, 974 F.3d at 748–49

(“Based on the facts alleged in the complaint, a juror could reasonably infer that . . . the county had a custom of

allowing caseworkers to interview potential abuse victims in the presence of their alleged abusers. The original

complaint alleges six different instances [of unconstitutional conduct]. At the motion-to-dismiss stage, without the

benefit of discovery, these facts are enough to draw the reasonable inference that this custom was widespread

. . . and known to policymakers within the county.”); cf. Genaw v. Garage Equip. Supply Co., 856 F. App’x 23, 29

(6th Cir. 2021) (reversing the district court’s dismissal of a products liability dispute because “[t]he pleadings

plainly demonstrate[d] the crux of” the plaintiff’s claims, not because the plaintiff had not “had the benefit of full

discovery”).

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 10

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. When hiring former police officer Mathew Ward, the

City of Decherd (the “City”) refused to review, or even consider, Ward’s alarming history of

employment infractions and job-hopping as a police officer. In fact, the City deliberately

ordered that Ward’s background should not be investigated and, in the same breath, entrusted

Ward with the unbridled authority that accompanies a police badge and gun. Unsurprisingly,

Ward subsequently used excessive force to unlawfully abuse, intimidate, and seize an innocent

man, Plaintiff Ilya Kovalchuk. But when Kovalchuk turned to the federal courts for recourse, he

did not see his constitutional rights vindicated. Instead, his claims were prematurely dismissed

before they could even get through the gate—an error that the majority affirms today, effectively

foreclosing the future consideration of municipal liability claims based on the failure to screen a

police applicant’s background. Because I would allow Kovalchuk’s failure-to-screen allegations

to proceed, I respectfully dissent.

I. BACKGROUND

On June 13, 2021, Plaintiff Ilya Kovalchuk and an off-duty Decherd police officer,

Mathew Ward, drove westbound in their respective vehicles on Interstate 24 in Rutherford

County, Tennessee. Ward was driving in his personal vehicle, was not wearing his officer’s

uniform, and could not otherwise be identified as a police officer. After allegedly observing

Kovalchuk speeding, Ward began driving erratically, precariously swerving next to Kovalchuk’s

vehicle and motioning for him to pull over. Regardless of which lane Kovalchuk drove in to

avoid him, Ward continued in hot pursuit. Eventually, Kovalchuk called 911. After multiple

cars were forced to swerve out of Ward’s perilous path, Kovalchuk exited and pulled over at a

safe location.

Once stopped, Kovalchuk stepped out of the vehicle to face his aggressor, leaving his

pregnant wife in the passenger seat. Without explanation, Ward started screaming at Kovalchuk

to “get on the ground,” pointing his department-issued gun at Kovalchuk and holding up his

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 11

police badge. Compl., R. 1-1, Page ID #6. The contentious exchange drew multiple concerned

bystanders to the scene. Scared for his life, Kovalchuk flagged down one bystander to take a

video and tried to reason with Ward, stating “you’re not even on duty.” Id. However, Ward

continued to aim his gun at Kovalchuk, replying “I’m always on duty.” Id. Only when the

Rutherford County police arrived upon the scene to de-escalate the conflict did Ward finally put

away his weapon.

As a result of these events, Ward was charged with aggravated assault. Following the

incident, Kovalchuk obtained counsel to analyze the hiring processes of the Decherd City Police

Department and found that the Decherd police had never conducted a background check on

Ward prior to hiring him. To the contrary, Decherd Police Chief Ross Peterson ordered his

subordinate employee “not to consult references or previous employment” for Ward. Id. at Page

ID #7. Had the Decherd police consulted Ward’s references, they would have found that he was

previously employed by the Fort Walton Beach Police Department, which had asked Ward to

resign due to concerns about his demeanor, professionalism, and lack of training. Additionally,

had the Decherd police conducted a background check, they would have found further issues

with Ward’s prior employment at a second police department in Alabama.

Kovalchuk filed this 42 U.S.C. § 1983 action against Ward and the City of Decherd,

arguing that the City’s failure to investigate Ward’s employment references and problematical

background directly resulted in Kovalchuk’s injuries—namely, the unlawful seizure of

Kovalchuk in connection with the June 13, 2021 traffic stop. The City thereafter filed a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6), which the district court granted in

full. Kovalchuk timely appealed.

II. DISCUSSION

A. Standard of Review

The Rule 12(b)(6) standard is not demanding. We affirm 12(b)(6) dismissals only where

plaintiffs have not alleged facts that are sufficient to state a claim to relief that is “plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The allegations must allow the

court, using its judicial experience, “to draw the reasonable inference that the defendant is liable

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 12

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Importantly, even

where “recovery [seems] very remote and unlikely,” a complaint may survive a motion to

dismiss. Stratton v. Portfolio Recovery Assocs., 770 F.3d 443, 447 (6th Cir. 2014) (citing

Twombly, 550 U.S. at 556). And because this action was brought under one of the civil rights

statutes, this Court must “scrutinize such a dismissal with special care.” Lucarell v. McNair, 453

F.2d 836, 838 (6th Cir. 1972); see also Inner City Contracting, LLC v. Charter Twp. of

Northville, 87 F.4th 743, 754 (6th Cir. 2023); Scott v. Ambani, 577 F.3d 642, 646 (6th Cir. 2009).

Although the majority purports to agree with these general principles, its onerous

application of the plausibility standard misreads the pleading requirements delineated in

Twombly and Iqbal. Instead of viewing these failure-to-screen allegations in the light most

favorable to Kovalchuk, the majority jumps to premature conclusions regarding the City’s

ultimate liability, before affording Kovalchuk the opportunity to gather additional evidence to

prove his claims. In doing so, the majority requires § 1983 litigants to surmount a nearly

impossible hurdle to survive the early 12(b)(6) motion to dismiss stage.

B. Analysis

Among other claims not relevant to the instant appeal, Kovalchuk’s complaint asserted a

Fourth Amendment claim under 42 U.S.C. § 1983 against the City, alleging various theories of

municipal liability to hold the City accountable for Ward’s unconstitutional actions.

Kovalchuk’s strongest claim against the City focuses on Chief Peterson’s explicit command that

his subordinates refrain from investigating Ward’s background or employment history during the

hiring process.1 Although under Monell the City cannot be held vicariously liable for Ward’s

unconstitutional actions, Kovalchuk’s complaint alleges more—that the City’s deliberately

1

During oral argument, Kovalchuk’s counsel conceded that his complaint was deficient on Kovalchuk’s

failure-to-train and failure-to-supervise theories, and thus focused this Court’s evaluation on his persuasive failure-

to-screen theory of liability. Oral Arg. at 19:53–20:18; 20:20–20:28; 20:29–20:45. Contrary to the majority’s

completely unfair interpretation of Kovalchuk’s alleged concessions, Kovalchuk certainly did not abandon his entire

appeal at oral argument, as evidenced by the majority’s subsequent backtracking and analysis of the merits of

Kovalchuk’s failure-to-screen claim. Cf. Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 463 (4th Cir.

2013) (“The defendants cite no authority, nor can we find any, holding that an ambiguous statement made during

oral argument waives an argument clearly raised in a brief.”); Bannister v. Delo, 100 F.3d 610, 622 n.12 (8th Cir.

1996) (noting that the state’s “comments at oral argument did not have sufficient formality or conclusiveness to be

considered a judicial admission”).

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 13

skeletal screening process in hiring Ward led to Kovalchuk’s injuries. See Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978). These allegations meet the necessary fault and causation

standards to plausibly warrant imposing municipal liability, mandating that Kovalchuk’s claims

should be allowed to proceed.

Indeed, the Supreme Court expressly opened the door to the possibility that a

municipality may be liable for failing to adequately screen if “a full review of [Ward’s] record

reveals that [his unconstitutional arrest] would be a plainly obvious consequence of the hiring

decision.” Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 412–13 (1997). In the

context of a hiring decision, Brown articulates that an eventual finding of municipal liability

originates from allegations that a cover-to-cover background check would indicate “that this

officer was highly likely to inflict the particular injury suffered by the plaintiff.” Id. at 412.

Contrary to the majority’s premature conclusion that Kovalchuk has not “establish[ed]” this

causation standard, Maj. Op. at 8, Kovalchuk’s allegations regarding the City’s deliberate

dereliction of its investigative duties prior to hiring Ward permits the “reasonable inference” that

the City was the moving force behind Kovalchuk’s injuries. Iqbal, 556 U.S. at 678.

Viewing Kovalchuk’s failure-to-screen claim in the light most favorable to him, as

required at this stage, Chief Peterson ordered a subordinate officer not to investigate Ward’s

references or background throughout the hiring process. Thus, without consulting Ward’s

former employers or reviewing his employment history, Chief Peterson hired him and issued him

a police badge and gun. Had Chief Peterson contacted Ward’s listed references, he would have

found that Ward had “issues” with not one, but at least two previous police departments.

Compl., R. 1-1, Page ID #7. Specifically, the Fort Walton Beach Police Department asked Ward

to resign “due to concerns about his demeanor and professionalism,” as well as his failure to

complete his training. Id. Based on these allegations, Kovalchuk claims that the City knew or

should have known about the “systematic hiring and screening failure” allowing dangerous

individuals to surreptitiously become police officers. Id.

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 14

The gravity of Chief Peterson’s—and by extension, the City’s2—deliberate choice cannot

be overstated. Without so much as a call to either former police department employer, the City

entrusted Ward with a police badge and a gun, imbued with the implicit authority to decide life

or death of citizens. By rewarding the City’s “head in the sand” strategy, the majority insulates

the City from turning over a single piece of discovery, thereby endorsing and perpetuating the

cyclical hiring of predatory police officers. The majority’s approach permits those “wandering”

police officers who are fired or forced to resign under threat of termination to nonetheless seek

employment in nearby jurisdictions.3 Even further, this misguided immunization of police hiring

practices from liability strips away the City’s incentive to competently hire police officers, which

should be viewed as particularly imperative for employment that is accompanied by state power

and the authority to wield deadly weapons. As Kovalchuk’s complaint alleges, Ward burned

through two different police departments prior to being hired by the Decherd Police Department.

In the face of clear red flags, Chief Peterson ordered his subordinate to cease further background

investigation of Ward and avoid finding out any additional information about him. And then,

incomprehensibly, the City seeks to skirt its responsibility by subsequently purporting to be

surprised that the unvetted “wandering officer” later brutalized an innocent citizen.

Indeed, this preventable scenario has appeared over and over again, and the majority

today adds to this ever-growing list. To provide one example of many, Tamir Rice, a twelve-

year-old child from Cleveland, faced a tragic death in 2014 at the hands of a “wandering officer”

who was permitted to resign from his prior police department jobs and seek employment in

nearby jurisdictions. The Cleveland Police Department subsequently failed to review the unfit

officer’s employment history, which would have revealed that he exhibited a “dangerous lack of

composure” during his prior employment’s firearms training. See William H. Freivogel & Paul

Wagman, Wandering Cops Shuffle Departments, Abusing Citizens, The Associated Press (Apr.

2

The City has not disputed that Chief Peterson was a designated policymaker or that he had final authority

to act for the City in hiring matters. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479–80 (1986) (requiring

official policymaker status to distinguish acts of the municipality from the acts of its employees).

3

Nancy Leong, Civil Rights Liability for Bad Hiring, 108 MINN. L. REV. 1, 8 (Dec. 23, 2023) (explaining

that job hopping is so common in law enforcement that “officers who jump jurisdictions are nicknamed ‘wandering

officers’”). According to one study, “wandering officers are far more likely . . . to be fired from their next job” and

“more likely to receive complaints . . . for ‘moral character violations.’” Ben Grunwald & John Rappaport, The

Wandering Officer, 129 YALE L.J. 1676, 1687 (Apr. 2020).

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 15

28, 2021), https://apnews.com/article/michael-brown-business-police-reform-death-of-george-

floyd-bfd018e3c12413f840482efca29ca6ba [https://perma.cc/57Z8-U8T3]. These unchecked

warning signs proved true when the officer shot twelve-year-old Tamir to death while he was

playing with a toy gun. Id. This kind of recurring tragedy is destined to persist if courts

continue to provide municipalities with de facto immunity related to their police hiring decisions.

See Grunwald & Rappaport, supra note 3, at 1681–83 (collecting examples, “each as shocking

[and tragic] as the last”).

The majority sweeps these commonsense conclusions under the rug and instead

characterizes Kovalchuk’s allegations as “ambiguous,” explaining that they fail to “establish the

necessary causal link.” Maj. Op. at 8. In doing so, the majority requires much more than

plausibility. Both the district court and the majority misunderstand Kovalchuk’s burden at the

incipient 12(b)(6) stage by holding that he did not “establish” or conclusively “show” causation

under Brown. Maj. Op. at 8, 9; Dist. Ct. Memo. Op., R. 35, Page ID #133. But Kovalchuk’s

claims should not be cursorily discarded under the assumption that causation cannot be

established or met. To be sure, Ward’s issues with demeanor, professionalism, and training may

not—at a later stage of litigation—rise to the demanding standard articulated in Brown4;

however, Kovalchuk’s complaint is not required to “establish” his entitlement to relief, nor is it

required to convince the district court that his sought-after relief is probable. See Lipman v.

Budish, 974 F.3d 726, 748 (6th Cir. 2020); Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 615

(6th Cir. 2004) (noting that where general allegations embrace the specific facts needed to prove

a claim, any weakness “will more often be fodder for a summary-judgment motion under Rule

56 than a motion to dismiss under Rule 12(b)(6)”); Garza v. Lansing Sch. Dist., 972 F.3d 853,

868 (6th Cir. 2020) (stating the same). The correct legal standard, plausibility, falls somewhere

between possibility and probability, and the definition of this malleable middle ground relies

upon “judicial experience and common sense.” Iqbal, 556 U.S. at 679.

4

Importantly, Brown reviewed the plaintiff’s claims at a much later stage of litigation—the appeal of a jury

verdict. See Brown v. Bryan County, 67 F.3d 1174, 1179 n.11 (5th Cir. 1995). Unlike the plaintiff in Brown, who

was required to conclusively establish each element of his failure-to-screen claim, Kovalchuk must only allege facts

that could plausibly meet the failure-to-screen standards.

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 16

Applying this lenient standard to Kovalchuk’s allegations and drawing commonsense

inferences, one can fairly conclude that a disaster of this nature was a highly predictable

consequence of the City’s actions. See, e.g., Shadrick v. Hopkins County, 805 F.3d 724, 739 (6th

Cir. 2015) (“The high degree of predictability may also support an inference of causation—that

the municipality’s indifference led directly to the very consequence that was so predictable.”

(quoting Brown, 520 U.S. at 409–10)); see also Gregory v. City of Louisville, 444 F.3d 725, 754

(6th Cir. 2006). Just as the need for certain police officer training can be “so obvious” that

failure to implement such training may be characterized as deliberate indifference, the need for

certain screening procedures for new police hires can similarly be “so obvious” that the choice to

ignore them may also rise to deliberate indifference to citizens’ constitutional rights. City of

Canton v. Harris, 489 U.S. 378, 390 n.10 (1989). And just as Brown requires, Kovalchuk

specifically alleged that Ward’s references would have revealed—at a minimum—“concerns

about his fitness as an officer,” a lack of training, and “concerns about his demeanor and

professionalism.” Compl., R, 1-1, Page ID #7, 12. Without the benefit of discovery and with the

vast majority of the evidence in Defendant’s control, Kovalchuk’s failure-to-screen allegations

are more than sufficient to survive a 12(b)(6) motion. See, e.g., Lipman, 974 F.3d at 748

(highlighting the plaintiff’s lack of an opportunity to engage in discovery and holding that his

complaint survived a 12(b)(6) motion by sufficiently alleging a Monell custom); Genaw v.

Garage Equip. Supply Co., 856 F. App’x 23, 29 (6th Cir. 2021) (reversing district court’s order

dismissing plaintiff’s complaint and noting that plaintiffs had not been provided the benefit of

full discovery).

Looking at Kovalchuk’s complaint as a whole, it is plausible that Ward was highly likely

to commit the instant constitutional violation, and that any semblance of screening procedures

during the hiring process would have produced a different outcome. By concluding otherwise,

the majority fails to construe the facts in the light most favorable to Kovalchuk and “fails to

realize that we are not ruling on the ultimate issue of liability.” Ouza v. City of Dearborn

Heights, 969 F.3d 265, 289 (6th Cir. 2020). Particularly in the context of civil rights cases, this

Court should not adhere to a standard that is dangerously akin to a probability test. Yet the

majority today does exactly that, unconcernedly barring civil rights plaintiffs who allege failure-

to-screen claims from ever making it past the first hurdle. Using this unfair standard, the

No. 23-5229 Kovalchuk v. City of Decherd, et al. Page 17

majority insulates government actors who deliberately turn a blind eye to the backgrounds and

employment histories of their potential hires.

III. CONCLUSION

Contrary to the majority’s misplaced fear regarding the City’s liability if we were to

reverse the district court’s decision, Maj. Op. at 9, Kovalchuk’s plausible allegations should be

permitted to move forward. Doing so at this stage of the litigation does not hold a municipality

“liable” for any action. Id.; see Ouza, 969 F.3d at 289 (noting that considering the ultimate

question of liability is inappropriate at the 12(b)(6) stage). Instead, allowing these allegations to

proceed to the discovery phase simply affords often-vulnerable plaintiffs the opportunity to

attempt to prove their civil rights claims in federal court, a forum historically relied upon for

relief from governmental abuse. See Monroe v. Pape, 365 U.S. 167 (1961). Rather than the

conclusive “smoking gun” evidence that the majority requires, the proper standard requires

allegations that only “nudge[] [Kovalchuk’s] claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570. Kovalchuk has met that burden in this case.

Accordingly, the district court erred in dismissing Plaintiff’s claims against the City based on a

failure-to-screen theory of Monell liability. And the majority, in affirming the district court,

improperly raises the plausibility bar presented in Twombly and Iqbal—to the detriment of

present and future civil rights plaintiffs.

I therefore respectfully dissent.