Rose v. City of Cleveland et al
Filing
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Opinion and Order. Defendant City of Cleveland's Motion to Dismiss (Related doc # 19 ) is granted in part and denied in part. Defendant Marymount Hospital's Motion for Judgment on the Pleadings (Related doc # 18 ) is denied. Judge Christopher A. Boyko on 8/14/2013. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERRY A. ROSE,
Plaintiff,
Vs.
CITY OF CLEVELAND, ET AL.,
Defendant.
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CASE NO.1:13CV642
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court upon Defendant Marymount Hospital’s Motion
for Judgment on the Pleadings (ECF DKT #18) and Defendant City of Cleveland’s Motion to
Dismiss for Failure to State a Claim (ECF DKT #19). For the following reasons, the Court
grants in part and denies in part the City of Cleveland’s Motion to Dismiss, and denies
Marymount’s Motion for Judgment on the Pleadings.
I. BACKGROUND
Plaintiff makes the following allegations in her Amended Complaint (ECF DKT #16).
In the early morning of July 28, 2011, Terry Rose (“Plaintiff”) was at the home of her fiancee,
Jeremiah Fuller. Jeremiah lives in the upstairs unit of a house, while his mother, Inez Fuller,
lives in the downstairs unit. Around 3:55 a.m., three Cleveland police officers (“Officers”)
arrived at the house in response to a neighbor’s report of a disturbance. While Jeremiah
answered the front door, Plaintiff opened the downstairs door, inadvertently knocking Inez,
who happened to be behind the door at the time, to the ground. Plaintiff told the Officers that
the situation was under control, but the Officers nevertheless entered the home and told
Plaintiff to return to the upstairs unit. Instead, Plaintiff attempted to check on Inez to make
sure she was not injured. The Officers then grabbed Plaintiff and handcuffed her “so tightly
that it caused extreme discomfort to her wrists and cut off circulation to her hands.”
(Amended Complaint at ¶ 15). Plaintiff was then dragged outside by her hair and handcuffs
and left lying on the grass, in the rain.
In the meantime, an EMS was called by the Officers. Plaintiff insisted that she did not
need an EMS, but was placed in the ambulance and “forcibly shackled . . . so tight [it] caused
her a great deal of pain.” (Id. at ¶ 19). On the way to Marymount Hospital (“Marymount”),
Plaintiff’s repeated requests that her handcuffs be loosened, and for some water, were denied.
Around 4:45 a.m., Plaintiff was admitted to Marymount as a patient against her will.
Marymount staff and the Officers then “discussed and agreed to forcibly restrain Plaintiff,”
which was followed up by Marymount staff placing Plaintiff on a bed with arm and leg
restraints. (Amended Complaint at ¶ 22-23). Two nurses administered shots, took blood
from Plaintiff, and removed some of her clothes while the Officers were present. Two days
after the incident, Plaintiff was treated for cellulitis, apparently caused by the scraping and
swelling on her wrists and hands while handcuffed and restrained. (Id. at ¶ 26-27).
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On March 14, 2013, the Department of Justice (“DOJ”) announced it will be
conducting a “full civil rights investigation” into use of force issues by Cleveland police
officers. In 2002, the City of Cleveland (“Cleveland”) was also investigated and given
recommendations related to the use of force by its officers.
In Plaintiff’s Amended Complaint, four counts are alleged, including: (1) excessive
force against the Officers, who are not involved in the present motions; (2) failure to train and
supervise against Cleveland; (3) civil conspiracy against all defendants; and (4) intentional
infliction of emotional distress against the Officers. Marymount has filed a Motion for
Judgment on the Pleadings (ECF DKT #18) and Cleveland has filed a Motion to Dismiss
(ECF DKT #19).
II. LEGAL STANDARDS
The standard for a motion for judgment on the pleadings is the same as a motion to
dismiss for failure to state a claim. Guidry v. American Public Life Ins. Co., 512 F. 3d 177,
180 (5th Cir. 2007). A complaint does not need detailed factual allegations, but must be more
than a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In deciding on 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, even if doubtful in fact. Id. If all the factual allegations, accepted as true, state a
claim that is plausible on its face, then a complaint may survive a motion to dismiss. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “[A] pleader must 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) (internal
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quotation marks omitted). A complaint may proceed even if a recovery is “very remote and
unlikely.” Twombly, 550 U.S. at 556.
III. LAW AND ANALYSIS
A. Civil Rights Claim against Cleveland
Cleveland has moved to dismiss all claims against it for failure to state a claim. In the
Amended Complaint, Plaintiff alleges that Cleveland failed to adequately train and supervise
the Officers. Plaintiff further alleges Cleveland failed to institute adequate policies and
procedures governing the use of force. The “inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact.” City of Canton v. Harris, 489
U.S. 378, 388 (1989). Following Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the
Sixth Circuit has recognized that a plaintiff has four scenarios which could 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. Thomas v. Chattanooga, 398 F. 3d 426, 429 (6th
Cir. 2005).
The Complaint is rife with legal conclusions couched as factual allegations, and it is
very close to merely reciting the elements of a cause of action. Plaintiff has, however,
pointed to a Department of Justice investigation into Cleveland’s use of force due to
allegations of excessive force. While the investigation may find no abuse, the fact that there
is such an investigation raises a reasonable, albeit weak, inference that Cleveland was on
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notice that its training and supervision were insufficient and nonetheless tolerated or
acquiesced to these violations. A complaint “may proceed even if it strikes a savvy judge . . .
that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556. Plaintiff’s civil
rights claim will proceed.
B. Civil Conspiracy Claims against Cleveland and Marymount
Plaintiff next alleges that the Defendants “entered into an agreement to form a
malicious combination designed to injure Plaintiff and/or deprive her of certain constitutional
rights by forcibly restraining her and treating her without her consent.” (Amended Complaint
at ¶ 44). A civil conspiracy is:
an agreement between two or more persons to injure another by
unlawful action. Express agreement among all the conspirators
is not necessary to find the existence of a civil conspiracy.
Each conspirator need not have known all of the details of the
illegal plan or all of the participants involved. All that must be
shown is that there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and
that an overt act was committed in furtherance of the conspiracy
that caused injury to the complainant.
Hooks v. Hooks, 771 F. 2d 935, 943-944 (6th Cir. 1985). “[A] complainant must plead
conspiracy claims with some degree of specificity.” Gutierrez v. Lynch, 826 F. 2d 1534, 1538
(6th Cir. 1987). Liability for civil conspiracy requires the performance of an underlying
tortious act, and thus cannot be independently brought. Halberstam v. Welch, 705 F. 2d 472,
479 (D.C. Cir. 1983). Once a civil conspiracy is formed, all members of the conspiracy are
liable for injuries caused by any act in furtherance of the conspiracy. Id. A municipality
cannot be liable for the unconstitutional acts of its employees under a respondeat superior
theory. Harris, 489 U.S. at 385; see also Monell, 436 U.S. at 691.
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It is unclear from the Amended Complaint whether Plaintiff is making such a claim
based on federal or state law conspiracy. In Plaintiff’s Response (ECF DKT #22) to
Cleveland’s Motion to Dismiss, Plaintiff seems to clarify that they are alleging a Fourth
Amendment violation via a § 1983 claim, and not a state law conspiracy claim. As such, the
Court will only consider a federal civil conspiracy claim.
There is also some uncertainty as to what underlying tortious act the conspiracy claim
is tied to. In Plaintiff’s Amended Complaint, the claim for civil conspiracy seems to be based
on her being forcibly restrained. (Amended Complaint at ¶ 44). In Plaintiff’s Response to
Marymount’s Motion (ECF DKT #21), however, Plaintiff also seems to connect the
conspiracy claim to the IIED claim made against the Officers. Marymount asserts that
because Plaintiff connects it to the IIED claim, which is based on acts occurring before
Marymount’s involvement, Marymount cannot be liable under civil conspiracy. See ECF
DKT #23. The very same sentence that brings up the IIED claim, however, also states “[the
Officers] conspired with [Marymount’s] staff to forcibly restrain Plaintiff against her will.”
(ECF DKT #21 at 4) (emphasis added). Plaintiff did not abandon the connection of the
conspiracy claim to the forcible restraint and treatment.
1. City of Cleveland
Plaintiff has included Cleveland in its claim for civil conspiracy. However, Plaintiff
only alleges that at “the hospital, the Officers and members of Marymount staff discussed and
agreed to forcibly restrain Plaintiff.” (Amended Complaint at ¶ 22) (emphasis added).
Nowhere is there any factual allegation that Cleveland itself was involved in agreeing to
restrain Plaintiff against her will. Plaintiff also cannot rely on any policy or custom she
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identified for Cleveland’s failure to train, since those customs relate to excessive force, not
restraining and treating against one’s will. Without any factual allegations connecting
Cleveland to any alleged conspiracy, Plaintiff has failed to state a claim against Cleveland for
civil conspiracy.
2. Marymount Hospital
Plaintiff further alleges that Marymount was involved in the conspiracy to violate her
constitutional rights. Marymount is correct that it cannot be liable for a civil conspiracy
based on the IIED claim, since Plaintiff asserts that her emotional distress was “a result of the
Officers’ actions.” (Id. at ¶ 48). All of the Officers’ actions, according to the Amended
Complaint, occurred before the alleged agreement was made. Thus, any alleged emotional
distress is a result of acts that occurred prior to the alleged formation of a conspiracy, and
Marymount cannot be liable for that distress. Marymount may still be liable for civil
conspiracy, however, based on Plaintiff’s restraint at the hospital, which did occur after the
conspiracy was allegedly formed.
Marymount argues there are three reasons the claim for civil conspiracy against it
should be dismissed: (1) Plaintiff’s Complaint is noncompliant with Ohio Civ. R. 10(D)(2);
(2) Plaintiff has failed to state any facts to allow a reasonable inference of conspiracy; and (3)
Plaintiff has failed to assert an underlying claim actionable without the conspiracy. The third
argument may be quickly disposed of, as Plaintiff has asserted that her constitutional rights
were violated when she was forcibly restrained and treated against her will. (Amended
Complaint at ¶ 44). Such acts, if true, are unlawful and actionable without conspiracy. See
42 U.S.C. § 1983. That civil conspiracy is the only claim made against Marymount is
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irrelevant so long as Plaintiff has alleged an actionable act that was in furtherance of the
conspiracy.
Marymount’s second argument, that Plaintiff has failed to plead sufficient material
facts, may also be quickly rejected. Plaintiff has alleged an agreement between two or more
persons, an unlawful act in furtherance of that agreement, and a resulting injury. Allegedly,
the Officers and Marymount staff agreed to forcibly restrain Plaintiff (Amended Complaint at
¶ 22), which they did (Id. at ¶ 23-25), and that caused Plaintiff scrapes and swelling on her
hand resulting in cellulitis (Id. at 26-27). Plaintiff has adequately pled a civil conspiracy with
sufficient factual allegations to meet the requirements of Twombly and Iqbal.
Marymount’s first argument also fails. The gist of the argument is that the civil
conspiracy claim is actually a medical claim since it includes allegations that Plaintiff was
forcibly treated against her will. Since it is really a medical claim, Marymount argues,
Plaintiff has failed to comply with Ohio Civ. R. 10(D)(2) which requires an affidavit from an
expert witness to be included in the pleadings. This is not a medical claim, however. While
the Amended Complaint may also mention the treatment Plaintiff was given against her will,
the civil conspiracy claim is largely based on restraining Plaintiff, in both substance and form.
The Amended Complaint alleges that the agreement was formed when the Officers and
Marymount staff “discussed and agreed to forcibly restrain Plaintiff.” Despite Marymount’s
accusations, Plaintiff has not “artfully pled” to transform a medical claim into a different type
of claim. Rather, it appears Marymount has attempted to artfully transform the Plaintiff’s
claim into something it is not.
V. CONCLUSION
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For all the above-mentioned reasons, the Court GRANTS IN PART and DENIES IN
PART Cleveland’s Motion to Dismiss (ECF DKT #19), and DENIES Marymount’s Motion
for Judgment on the Pleadings (ECF DKT #18).
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: August 14, 2013
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