Ondo et al v. Cleveland et al

Filing 23

Memorandum Opinion and Order: Defendants Clifford Kime's and City of Cleveland's Motion to Dismiss Plaintiff's First Amended Complaint is granted. Judge Patricia A. Gaughan on 8/27/12. (LC,S) re 17

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Steven Ondo, et al.,
Plaintiff,
vs.
City of Cleveland, et al.,
Defendant.

)
)
)
)
)
)
)
)
)

CASE NO. 1:12 CV 122
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon defendants Clifford Kime’s and City of
Cleveland’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 17). This is a §
1983 case alleging excessive force and “undisguised prejudice” against two gay men. For the
following reasons, the motion is GRANTED.
Facts
Plaintiffs Steven Ondo and Jonathon Simcox filed this Amended Complaint against
moving defendants City of Cleveland and Officer Clifford Kime, as well as 16 other named
defendants and John and Jane Does.
The Amended Complaint is based on two incidents and generally alleges the
1

following. On the evening of April 2, 2011, plaintiffs Ondo and Simcox, along with a friend,
were walking home to plaintiffs’ apartment in Cleveland, Ohio when an argument arose
between plaintiffs which caused Ondo to separate from the others. Upon learning that Ondo
had the key to the apartment, Simcox began calling out for him. This precipitated a
confrontation with defendant Matthew Maclaren, an off-duty Cleveland police officer, who
suddenly appeared and yelled, “Shut up you faggot.” Maclaren punched and dragged Simcox
and then pinned Ondo, who had come to the scene, to the ground. Neighbors distracted
Maclaren which allowed for plaintiffs to retreat to their apartment and call the Cleveland
Police Department. When the police arrived, plaintiffs were removed from their apartment,
placed in police cars, handcuffed, and taken to jail. After charges were dropped, plaintiffs
were released from jail three days later.
On the morning of April 8, 2011, members of the “Sweep Team” of the Cleveland
Police Department, performing a “warrant sweep,” came to plaintiffs’ apartment and seized
and dragged them out. The Sweep Team consisted of three units: the Community Services
Unit, the Swat Unit, and the Warrant Unit. Officer Kime was a member of the Warrant Unit.
Plaintiffs were punched, placed in handcuffs, and arrested for assaulting a police officer.
Dressed only in their t-shirts, underwear, and shoes, plaintiffs were taunted by the members of
the Sweep Team for being gay and taken to the Cleveland City Jail. Once at the jail, repeated
requests for pants were denied by jail employees for about a day. Plaintiffs were released on
April 10, 2011, and forced to walk home without pants. After a full trial before a judge,
plaintiffs were found not guilty of assaulting a police officer.
The Complaint asserts six claims: three arise under § 1983 (excessive force, violation

2

of right to privacy and to be free from cruel and unusual punishment, and violation of equal
protection). The remaining arise under state law (assault and battery, intentional infliction of
emotional distress, and invasion of privacy1).
This matter is before the Court upon defendants City of Cleveland’s and Kime’s
Motion to Dismiss.2
Standard of Review
“Dismissal is appropriate when a plaintiff fails to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). We assume the factual allegations in the complaint are true
and construe the complaint in the light most favorable to the plaintiff.” Comtide Holdings,
LLC v. Booth Creek Management Corp., 2009 WL 1884445 (6th Cir. July 2, 2009) (citing
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) ). In construing
the complaint in the light most favorable to the non-moving party, “the court does not accept
the bare assertion of legal conclusions as enough, nor does it accept as true unwarranted
factual inferences.” Gritton v. Disponett, 2009 WL 1505256 (6th Cir. May 27, 2009) (citing In
re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir.1997). “To survive a Rule 12(b)(6)
motion, the nonmoving party must provide more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.... Factual allegations must be
enough to raise a right to relief above the speculative level.”ABS Industries, Inc. ex rel. ABS
Litigation Trust v. Fifth Third Bank, 2009 WL 1811915 (6th Cir. June 25, 2009) (citing

1

The invasion of privacy claim is labeled as the tenth cause of action, although it is
the sixth.

2

Plaintiffs opposed the motion, and defendants did not file a reply brief.
3

Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
In Twombly, the court held that to survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. at 556.
Discussion
Defendants assert that the Amended Complaint contains insufficient allegations as to
Kime and the City of Cleveland and fails to state a plausible right of recovery as to them.
As to Kime, defendants point out that the Amended Complaint only alleges the
following: Kime was a member of the Warrant Unit that participated in the April 8 warrant
sweep. He was present at plaintiffs’ home that morning. (Am. Compl. ¶ 83) Kime took
plaintiffs’ fingerprints upon arrival at the jail on April 8. (Id. ¶109) Kime met with Cleveland
Police Sergeant Diaz, who was in charge of the April 8 warrant sweep, the morning of April 8
to discuss the sweep. Diaz approved and delegated to Kime full, final, and unreviewable
discretion regarding the methods the Sweep Team would use against plaintiffs. Kime, along
with Diaz, was the final policymaker for purposes of particular aspects of the raid including
the staffing of the Sweep Team and the tactical methods it would employ as well as its
treatment of plaintiffs. (Id. ¶124)
Defendants assert that the Amended Complaint does not identify any specific act of
misconduct allegedly committed by Kime, and does not offer any operative facts supporting

4

the legal conclusion that he was a policymaker. Nor, defendants contend, does the pleading
identify any specific custom or practice allegedly adopted by Kime, and fails to explain how
any such policy or practice lead to the alleged constitutional violations.
Plaintiffs assert that in addition to the allegations identified above, it can be inferred
from the Amended Complaint that Kime participated in the April 8 arrest of plaintiffs, and
that he withheld pants to plaintiffs in jail given that he brought plaintiffs there in that
condition. Moreover, plaintiffs point to the allegation that the “Sweep Officer who appeared
to be in charge responded by punching [Simcox] twice in the face...” (Am. Compl. ¶ 91)3
Plaintiffs contend that the Amended Complaint sufficiently alleges that Kime was a
policymaker who ratified the unconstitutional conduct of the Sweep Team. The fact that he
brought plaintiffs in for booking and fingerprinted them, additionally supports the fact that he
had managerial and policymaking authority and responsibility.
For the following reasons, the Amended Complaint fails to state a claim against Kime.
“To establish liability under Section 1983 against an individual defendant, a plaintiff must
plead and prove that the defendant was personally involved in the conduct that forms the basis
of his complaint.” Reynolds v. Smith, 2012 WL 293012 (S.D.Ohio Feb. 1, 2012) (citing
Greene v. Barber, 310 F.3d 889, 899 (6th Cir.2002); Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir.1999)). “A party cannot be held liable under Section 1983 unless the party personally
participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly

3

Plaintiffs also assert that defendants have deliberately failed to produce Kime for
a discovery deposition despite being properly subpoenaed, thereby “secreting
information about the raid.” But, there is no pending discovery dispute brought to
this Court’s attention.
5

unconstitutional conduct.” Id. (citing Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th
Cir.1989)). Supervisory liability under § 1983 must lie upon more than a mere right to
control employees. Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006). A supervisor
may be held liable for ratification of unconstitutional actions by subordinate officers through
a policy of failing to discipline officers for prior unconstitutional actions. Griffin v. Kyle,
2012 WL 122360 (S.D.Ohio Jan. 17, 2012) (citations omitted).
The fact that Kime was a member of the Warrant Unit that participated in the warrant
sweep at plaintiffs’ house is insufficient to infer that he was personally involved in excessive
force or other unconstitutional conduct against plaintiffs. To find otherwise would be making
an unreasonable inference which this Court is not permitted to do. To infer that Kime was a
defendant that withheld plaintiffs’ pants while they were in jail based on the fact that Kime
brought plaintiffs to the jail without their pants and fingerprinted them is also an unwarranted
factual inference given that Kime is not alleged to exert any control over the jail.
Additionally, the Court cannot reasonably conclude that Kime was the “Sweep Officer who
appeared to be in charge” who punched Simcox in the face. Nor are there any allegations that
Kime previously failed to discipline officers for other unconstitutional actions.
Additionally, plaintiffs’ allegation that Kime was a final policymaker of the sweep
falls short of stating a claim against him in his role as supervisor of the officers involved in
the incident. This allegation does not contain enough, or even any, information concerning
Kime’s role to render a claim for supervisory liability against him plausible. Instead, the
allegations appear to be legal conclusion rather than a factual allegation that Kime ratified the
officers’ unconstitutional actions through a policy of failing to discipline them.

6

In sum, there are insufficient allegations to show that Kime was personally involved in
or participated in the violative conduct because of his mere presence. There must be more
than merely the existence of supervisory authority before Kime could be liable for the
unconstitutional conduct of his subordinates.
As to the City of Cleveland, the Amended Complaint alleges that by failing to
properly investigate the unconstitutional acts of the police officers, the City of Cleveland
ratified the acts of the defendants giving rise to § 1983 liability.
It is well-established that a municipality may only be held liable under § 1983 when
an official policy or custom causes an employee to violate another's constitutional rights. See
Smith v. Patterson, 430 Fed.Appx. 438 (6th Cir. 2011) (citing Monell v. Dept. of Soc. Servs.,
436 U.S. 658 (1978)). There is no respondeat superior liability under § 1983. Id. “A failure
to investigate or the ratification of illegal acts can constitute evidence of an official ‘policy of
deliberate indifference.’ ” Skovgard v. Pedro, 448 Fed.Appx. 538 (6th Cir. 2011) (citing Leach
v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir.1989)). A plaintiff can establish
municipal liability claim by showing that a final municipal policymaker approved an
investigation that was so inadequate as to constitute a ratification of an alleged use of
excessive force. See Lentz v. City of Cleveland, 333 F.Appx. 42 (6th Cir. 2009)(citing
Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir.1993).
While a municipality's failure to investigate constitutional deprivations and to
discipline offending officers can give rise to municipal liability under § 1983, the plaintiff
must demonstrate that the municipal action was taken with deliberate indifference as to its
known or obvious consequences. Gregory v. City of Louisville, 444 F.3d 725, 752 (6th

7

Cir.2006). To establish deliberate indifference, the plaintiff must show prior instances of
unconstitutional conduct demonstrating that the municipality ignored a history of abuse and
was clearly on notice that the supervision was deficient and likely to cause injury. See Miller
v. Sanilac County, 606 F.3d 240, 255 (6th Cir.2010).
Defendants assert that plaintiffs do not allege or offer operative facts suggesting
deliberate indifference. In their brief, plaintiffs argue that based on their allegation that the
officers taunted them by saying, “faggots don’t get to where pants to jail,” an inference may
be made that the Cleveland Police Department customarily treats gay men differently than
heterosexual men. That would be an unwarranted factual inference. There are no allegations
of prior instances of such unconstitutional conduct of which the City had prior knowledge and
failed to investigate. Rather, plaintiffs are obviously attempting to infer a City-wide policy
based solely on one instance of potential misconduct which would effectively be holding the
City liable on a respondeat superior theory.
Finally, plaintiffs also contend that because the individual defendants were sued in
their official capacities, the City of Cleveland is a proper defendant. While it is true that an
official capacity claim is treated as an action against the City itself, “a successful suit against
a municipal officer in his official capacity must meet the requirements for municipal liability
stated in Monell.” Kraemer v. Luttrell, 189 Fed.Appx. 361 (6th Cir. 2006). As discussed
above, plaintiffs failed to state a claim for municipal liability.
For these reasons, defendants Kime and City of Cleveland are properly dismissed.
Conclusion
For the foregoing reasons, defendants Clifford Kime’s and City of Cleveland’s Motion

8

to Dismiss Plaintiff’s First Amended Complaint is granted.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge

Dated: 8/27/12

9