Mitchell v. Grasha et al

Filing 37

Opinion and Order. Defendants City of Cleveland, Martin Flask and Michael McGrath's Motion to Dismiss (Related doc # 26 ) is granted in part and denied in part. Only the 42 U.S.C. § 1983 failure to train claim against Defendant, City of Cleveland, remains pending for further adjudication. Judge Christopher A. Boyko on 6/10/2013. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RON MITCHELL,
Plaintiff,
vs.
DAVID GRASHA, et al.,
Defendants.

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CASE NO. 1:12CV2181
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #26) of Defendants,
City of Cleveland, Martin Flask, and Michael McGrath, to Dismiss. For the following
reasons, the Motion is granted in part and denied in part.
I. FACTUAL BACKGROUND
On August 24, 2012, Plaintiff filed the instant Complaint against the City of
Cleveland; Director of Public Safety Martin Flask; Chief of Police Michael McGrath; and
Patrol Officers, David Grasha, Wade Westerfield, Shane Bauhof, and Eric Newton, alleging
claims pursuant to 42 U.S.C. § 1983 and related state causes of action.
On August 24, 2011, Plaintiff was pursued by Officers Bauhof and Newton on
Imperial Avenue in Cleveland, Ohio. Officers Grasha and Westerfield arrived at the location
in a marked patrol vehicle, in response to a dispatch broadcast. Grasha and Westerfield
observed Plaintiff running down the street, and struck him with their vehicle. Plaintiff
continued running, and the officers chased him on foot. After a brief pursuit, Grasha shot
Plaintiff.

As the result of this incident, Plaintiff was indicted in Cuyahoga County Common
Pleas Court for one count of Carrying Concealed Weapons and two counts of Aggravated
Menacing. A jury returned a verdict of Not Guilty on the two counts of Aggravated
Menacing; but could not reach a verdict on the Carrying Concealed Weapons count.
Plaintiff brings suit against the individual police officers for civil rights violations;
excessive force; civil conspiracy; battery; assault; false arrest/imprisonment; and intentional
infliction of emotional distress. As to the City, Director Flask, and Chief McGrath, Plaintiff
alleges failure to train (Third Cause of Action) and negligent hiring (Fourth Cause of Action).
Plaintiff brings a malicious prosecution claim (Eleventh Cause of Action) against all of the
named Defendants.
Specifically, Plaintiff’s Complaint alleges that Defendants, City, McGrath and Flask,
“failed to provide proper training for their police officers thereby resulting in the violation of
Plaintiff’s constitutional rights.” (ECF DKT #1, ¶ 50). Defendants “failed to promulgate
policies, plans, and procedures designed to protect the civil rights of the persons who come in
contact with its police officers.” Id. at ¶ 51. Defendant Officers “acted pursuant to official
policies, plans, and training of their respective agencies when they pursued and shot Plaintiff”
and “were not properly trained and/or certified in the use of force, including, but not limited
to the use of firearms.” Id. at ¶¶ 53 & 55. The policies and procedures of the Defendants,
City, McGrath and Flask, “exhibit a deliberate indifference to the civil rights of Plaintiff and
others with whom Defendants come in contact.” Id. at ¶ 56.
Furthermore, Plaintiff alleges that the City, McGrath, and Flask “negligently hired,
trained, and/or provided inadequate training to Defendants Grasha, Westerfield, Bauhof,

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Newton, and Doe.” Id. at ¶ 57. “The hiring practices, training practices, policies, procedures,
and customs of the City of Cleveland, Defendant McGrath, and Defendant Flask, and the
policies and procedures adopted by the City of Cleveland Police Department, Defendant
McGrath, and Defendant Flask amount to deliberate indifference to rights and liberties of the
persons with whom they come in contact.” Id. at ¶ 58.
In his Eleventh Cause of Action - Malicious Prosecution, Plaintiff alleges:
On or about August 24, 2011, Defendants Grasha, Westerfield, Bauhof,
Newton, McGrath, Flask, Doe and the City of Cleveland, and each of them,
maliciously and without probable cause charged Plaintiff with the criminal
offense of carrying concealed weapons and aggravated menacing ... the
aforementioned charges filed against Plaintiff were based upon false and
misleading information provided by Defendants Grasha, Westerfield, Bauhof,
Newton, McGrath, Flask, Doe and the City of Cleveland, and each of them.
Id. at ¶¶ 107-109.
The moving Defendants seek dismissal of these claims against them, under
Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted.
II. LAW AND ANALYSIS
Standard of Review
In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept as
true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,
93-94 (2007). The court need not, however, accept conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” As
the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955
[(2007)], the pleading standard Rule 8 announces does not require “detailed
factual allegations,” but it demands more than an unadorned,
the-Defendant-unlawfully-harmed-me accusation. Id. at 555. A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.
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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.” Id. 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. 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. Id. Where a complaint pleads facts that are
“merely consistent with” a Defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal “obliges
a pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.” Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.2007)).
That is, “Iqbal interpreted Twombly to require more concrete allegations only in those
instances in which the complaint, on its face, does not otherwise set forth a plausible claim for
relief.” Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570.
Malicious Prosecution Claim
Defendants, City of Cleveland, Flask and McGrath, move for dismissal of Plaintiff’s
state law malicious prosecution claim, because they are entitled to statutory immunity
pursuant to Ohio Revised Code Chapter 2744. Defendants further contend that no exceptions
to immunity apply; and that the Complaint does not allege malice or wanton or reckless
behavior, nor that the individual Defendants’ actions were manifestly outside the scope of
their employment or responsibilities.

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In his Response Brief (ECF DKT #29), Plaintiff does not address the immunity
arguments made relative to the malicious prosecution claim. Therefore, the Court considers
the claim abandoned; and Defendants’ Motion to Dismiss the state law malicious prosecution
cause of action is granted as unopposed.
42 U.S.C. § 1983 claims against Flask and McGrath in their official capacities
The Court agrees that a suit against a municipal employee in his official capacity is the
equivalent of a suit against the public entity itself. Shamaeizadeh v. Cunigan, 338 F.3d 535,
556 (6th Cir.2003). Since they are duplicative of Plaintiff’s claims against the City of
Cleveland, the § 1983 claims against Flask and McGrath in their official capacities are
dismissed.
§ 1983 Failure to train claim against Flask and McGrath in their individual capacities
Plaintiff makes conclusory allegations that Flask and McGrath failed to provide proper
training, particularly as to the use of firearms, and exhibited deliberate indifference to
Plaintiff’s civil rights. Supervisors, like Flask and McGrath, are not liable pursuant to § 1983
for failing to train unless they “either encouraged the specific incident of misconduct or in
some other way directly participated in it. At a minimum a plaintiff must show that the
official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Phillips v. Roane County, Tennessee, 534
F.3d 531, 543 (6th Cir.2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999)).
Since Plaintiff does not make even the slightest suggestion that Flask or McGrath had prior
knowledge, or authorized, condoned or participated in the incident, his individual capacity
failure to train claims are woefully inadequate under the Fed.R.Civ.P. 12(b)(6) pleading

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standard. Thus, the § 1983 failure to train claims against Flask and McGrath are dismissed.
§ 1983 failure to train claim against the City
In his Complaint, Plaintiff alleges that the City’s improper and/or inadequate training
practices, policies, procedures, and customs regarding the use of force by police officers
demonstrate a deliberate indifference to his and other citizens’ civil rights. Following Monell
v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the Sixth Circuit has recognized that a plaintiff
may look to several scenarios to establish a municipality’s illegal policy or custom: (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 rights violations. Lausin v. Bishko, 727
F.Supp.2d 610, 629 (N.D.Ohio 2010) (citing Thomas v. Chattanooga, 398 F.3d 426, 429 (6th
Cir.2005)).
In the instant matter, the Court makes no determination upon the ultimate success of
Plaintiff’s municipal failure to train claims. However, in view of the recognized avenues by
which Plaintiff may provide evidence demonstrating municipal liability, the Court believes
that his Monell cause of action is plausible, and survives dismissal at this time.
§ 1983 negligent hiring claims against the City, Flask, and McGrath
In the Complaint’s Fourth Cause of Action, Plaintiff alleges that the City of Cleveland
and/or the City of Cleveland Police Department, McGrath and Flask negligently hired
Defendant Officers Grasha, Westerfield, Bauhof, Newton, and Doe, in deliberate indifference
to the civil rights of Plaintiff and others. There is no allegation of any “red flags” or warning
signs in the officers’ background or personnel files, which “would lead a reasonable

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policymaker to conclude that the plainly obvious consequence of the decision to hire the
applicant would be a deprivation of a third party’s federally protected right.” Board of
County Commissioners v. Brown, 520 U.S. 397, 410 (1997).
Plaintiff’s Complaint contains even less than the “threadbare recitals of the elements
of a cause of action” which were criticized in Twombly, 550 U.S. at 555. Therefore, the
§ 1983 negligent hiring claims against the City, Flask, and McGrath are dismissed for failure
to state a claim under Fed.R.Civ.P. 12(b)(6).
III. CONCLUSION
For these reasons, the Motion (ECF DKT #26) of Defendants, City of Cleveland,
Martin Flask, and Michael McGrath, to Dismiss is granted in part and denied in part. Only
the 42 U.S.C. § 1983 failure to train claim against Defendant, City of Cleveland, remains
pending for further adjudication.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: June 10, 2013

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