Cleaver v. Smith et al
MEMORANDUM OPINION AND ORDER by Judge David J. Hale. Excessive force claim dismissed. Failure to train and supervise claims against Smith dismissed. Failure to train and supervise claims against Ward to proceed. Failure to have proper use of forc e policy claim against Ward and Smith to proceed. Assault and battery claims against Smith to proceed. Negligent hiring, retaining, supervising, training, and failing to develop proper use of force policy claims against Ward to proceed. Clerk to add Ward back as Defendant. cc:counsel, plaintiff pro se, Hardin County Attorney, Defendant Ward (JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
JOSEPH CLEAVER, JR.,
Civil Action No. 3:17-cv-P89-DJH
DEP. CLENNON SMITH et al.,
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Cleaver, Jr., a pretrial detainee presently incarcerated at the Hardin
County Detention Center, filed a pro se “Amended Civil Rights Complaint Under 42 U.S.C.
§ 1983” (Docket Number (DN) 12). This matter is before the Court for initial review of the
amended complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
(2007). For the reasons that follow, John Ward, Sheriff of Hardin County, will be added back to
this action as a Defendant, and the following claims will be allowed to proceed: (1) the
constitutional official-capacity claims against Defendant Ward for failure to train and failure to
supervise; (2) the constitutional official-capacity claims against Defendants Ward and Smith for
failure to have a proper use-of-force policy; (3) the state-law claims against Defendant Smith for
assault and battery; and (4) the state-law claims against Defendant Ward for negligently hiring,
retaining, supervising, training, and failing to develop a policy as to the proper use of force.
I. SUMMARY OF CLAIMS
On July 7, 2017, the Court performed initial review of the complaint and allowed the
Fourth and Fourteenth Amendment excessive-force claims against Defendant Smith, a Deputy
Sheriff with the Hardin County Sheriff’s Office, in his individual capacity to proceed and
dismissed Defendant Jon Ward, the Hardin County Sheriff, and the claims against him (DN 9).
In the amended complaint now before the Court, Plaintiff seeks to add John Ward1 back into this
case as a Defendant. Plaintiff seeks to add new claims against him. He further seeks to add
additional claims against Defendant Smith. Plaintiff sues each Defendant in his official and
individual capacities. He seeks “actual and punitive damages,” for the Court to “issue a
permanent restraining order enjoining Defendant Smith from using or exerting excessive force
against Plaintiff or citizens of the Commonwealth of Kentucky,” and for costs and attorney’s
In the amended complaint, Plaintiff states that Defendant Smith “has a prior history of
exerting excessive force upon citizens and has had multiple claims of excessive force brought
against him in the multiple departments and has been disciplined for excessive force.” Plaintiff
states that Defendant Ward “had prior knowledge concerning [Defendant] Smith’s history of
excessive force against citizens . . . .” Plaintiff asserts that he has video that supports the alleged
use of excessive force by Defendant Smith and that several deputies who witnessed the incident
“have documented [Defendant Smith’s] unconstitutional behavior by incident report condoning
such actions.” According to Plaintiff, as a result of the alleged wrongful acts by Defendants, he
has suffered “severe physical and mental pain and suffering, loss of health, mental illness, and
other long term injuries. Plaintiff also has lost earning capacity and anxiety.”
Plaintiff asserts Fourth, Eighth, and Fourteenth Amendment claims against Defendants.
Plaintiff further alleges that Defendants Ward and Smith, in their official capacities, failed to
“properly train, develop policy and procedure for use of excessive force, properly discipline,
supervise or act in a reasonable manner.” He also asserts state-law claims for assault and battery
against Defendant Smith and claims for negligent hiring, retention, supervision, and training as
Plaintiff spells Sheriff Ward’s first name two different ways. In the original complaint, he failed to include the “h.”
to Defendant Ward. Finally, Plaintiff asserts that Defendant Ward negligently failed to “develop
policy or procedure in regard to the proper use of force by members of his department . . . .”
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant amended complaint action under 28 U.S.C.
§ 1915A. Under § 1915A, the trial court must review the amended complaint and dismiss the
amended complaint, or any portion of the amended complaint, if the court determines that it is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. See § 1915A(b)(1), (2); McGore v.
Wrigglesworth, 114 F.3d at 608.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a
claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not require [it]
to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create
a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). To command otherwise would require the Court “to explore exhaustively all potential
claims of a pro se plaintiff, [and] would also transform the district court from its legitimate
advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
A. Federal Constitutional Claims
1. Fourth and Fourteenth Amendment Excessive-Force Claims
The Court addressed the Fourth and Fourteenth Amendment excessive-force claims
brought against Defendants in their individual and official capacities in its Memorandum
Opinion and Order dated July 7, 2017 (DN 9). Therein, the Court dismissed the claims against
Defendant Ward and allowed the Fourth and Fourteenth Amendment excessive-force claims
against Defendant Smith in his individual capacity to proceed. Plaintiff has presented no facts in
his amended complaint to alter the Court’s prior decision as to these constitutional claims.
Thus, as to the Fourth and Fourteenth Amendment claims, the Court’s previous
Memorandum Opinion and Order entered July 7, 2017, will remain in effect.
2. Eighth Amendment Excessive-Force Claim
Plaintiff appears to be alleging an Eighth Amendment claim as to the alleged use of
excessive force by Defendant Smith. Convicted inmates’ rights stem from the Eighth
Amendment, while pretrial detainees’ rights stem from the Fourteenth Amendment, Thompson v.
Cty. of Medina, Ohio, 29 F.3d 238, 242 (6th Cir. 1994); Roberts v. City of Troy, 773 F.2d 720,
723 (6th Cir. 1985), and the Fourth Amendment governs excessive-force claims during arrest.
See Graham v. Connor, 490 U.S. 386, 394 (1989) (holding that claims alleging excessive force
in the course of making an arrest are “properly analyzed under the Fourth Amendment’s
‘objective reasonableness’ standard”). The alleged excessive force about which Plaintiff
complains occurred during Plaintiff’s arrest and pretrial detention. Thus, the Eighth Amendment
is not applicable to Plaintiff’s excessive-force claim.
Accordingly, Plaintiff’s Eighth Amendment excessive-force claim will be dismissed.
3. Failure-to-Train, Failure-to-Supervise, and Lack-of-Policy Claims
As to the official-capacity claims against Defendants Ward and Smith for failure to train,
failure to supervise, and lack of a policy, such claims “‘generally represent  another way of
pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658,
691 n.55 (1978)). Therefore, Plaintiff’s claims against Defendants in their official capacities are
actually claims against Hardin County. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir.
When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). A municipality cannot be held responsible for a constitutional
deprivation unless there is a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. at 694.
There are at least four avenues a plaintiff may take to prove the existence of a
municipality’s illegal policy or custom. The plaintiff can look to (1) the
municipality’s legislative enactments or official agency policies; (2) actions taken
by officials with final decision-making authority; (3) a policy of inadequate
training or supervision; or (4) a custom of tolerance or acquiescence of federal
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005); see also Alman v. Reed,
703 F.3d 887, 903 (6th Cir. 2013) (“[T]he Supreme Court has held that a municipality can be
liable under § 1983 on a failure-to-train theory when the ‘failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact.’”) (quoting City of
Canton v. Harris, 489 U.S. 378, 388 (1989)). “To prevail on such a claim, the plaintiff must
prove the following three things: that the training program at issue is inadequate to the tasks that
the officers must perform; that the inadequacy is the result of the [municipality’s] deliberate
indifference; and that the inadequacy is closely related to or actually caused the plaintiff’s
injury.” Estates of Mills v. Knox Cty., No. 11-208-GFVT, 2014 WL 1047147, at *7 (E.D. Ky.
Mar. 14, 2014) (quotations omitted). Likewise, to succeed on a failure-to-supervise claim,
Plaintiff must show that action pursuant to official municipal policy of some nature caused the
constitutional violation. Id. at 6.
Here, Plaintiff is alleging that Defendant Sheriff Ward had a duty and legal responsibility
for training and supervising to prevent Plaintiff’s civil rights from being violated by Defendant
Smith, a Hardin County Sheriff’s Office employee. The Court construes Plaintiff’s amended
complaint as asserting an official-capacity claim against Defendant Ward for a failure to train
Defendant Smith in the use of excessive force and for failure to supervise Defendant Smith and
will allow these official-capacity claims against Defendant Ward to continue.
Plaintiff also makes allegations against Defendant Smith for failure to train and failure to
supervise. However, he provides no allegations as to who Defendant Smith failed to train or
supervise. “To state an actionable civil rights claim against a government official or entity, a
complaint must include specific factual allegations showing how that particular party’s own personal
acts or omissions directly caused a violation of the plaintiff’s constitutional rights.” LeMasters v.
Fabian, No. 09-702 DSD/AJB, 2009 WL 1405176, at *2 (D. Minn. May 18, 2009); see also Potter v.
Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct
on the part of the defendant and the complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed . . . .”). Thus, the failure-to-train and
failure-to-supervise claims as to Defendant Smith will be dismissed.
As to the lack of policy, a municipality can be liable under § 1983 if the harm complained
of resulted from the lack of a municipal policy. See Blackmore v. Kalamazoo Cty., 390 F.3d
890, 900 (6th Cir. 2004). Such lack of a policy must amount to deliberate indifference to the
injured party. Id.; see also Veanus v. Northampton Cty. Prison, 238 F. App’x 753, 755 (3d Cir.
2007) (finding that the prison’s lack of policy regarding bunk assignments could give rise to
§ 1983 liability only if the plaintiff could show that the lack of a policy resulted from the prison’s
The Court construes Plaintiff’s amended complaint as asserting an official-capacity claim
against Defendant Ward and Smith for a lack of policy regarding the use of force and will allow
this official-capacity claim against Defendants to continue.
B. State Law Claims
In his complaint, Plaintiff asserts claims for assault and battery against Defendant Smith.
He also asserts that Defendant Ward negligently hired, retained, supervised, trained, and failed to
develop a policy as to the proper use of force. Upon consideration, the Court will exercise
supplemental jurisdiction over these state-law claims and allow them to proceed past this initial
For the reasons set forth more fully above, and the Court being otherwise sufficiently
advised, IT IS ORDERED as follows:
(1) The Court’s previous Memorandum Opinion and Order entered July 7, 2017, will
remain in effect as to the Fourth and Fourteenth Amendment excessive-force claims.
(2) That the Eighth Amendment excessive-force claim is DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.
(3) That the constitutional official-capacity claims against Defendant Smith for failure to
train and failure to supervise are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) for failure to
state a claim upon which relief may be granted
(4) That the constitutional official-capacity claims against Defendant Ward for failure to
train and failure to supervise will proceed.
(5) That the constitutional official-capacity claims against Defendants Ward and Smith
for failure to have a proper use-of-force policy will proceed.
(6) That the state-law claims against Defendant Smith for assault and battery will
(7) That the state-law claims against Defendant Ward for negligently hiring, retaining,
supervising, training, and failing to develop a policy as to the proper use of force will proceed.
The Clerk of Court is DIRECTED to add John Ward back as a Defendant to the docket
of this action.
The Court passes no judgment on the merit or ultimate outcome of this case. The Court
will enter a separate Revised Order Directing Service and Scheduling Order to govern the
development of these new claims.
February 7, 2018
David J. Hale, Judge
United States District Court
Plaintiff, pro se
Counsel for Defendant Smith
Hardin County Attorney
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