Ferritto v. Cuyahoga County et al

Filing 42

Opinion and Order. Defendant Frank Bova's Motion to Dismiss (Related doc # 28 ) is granted. Plaintiff's claims against Defendant Frank Bova are dismissed without prejudice. Judge Christopher A. Boyko on 2/16/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DALLAS FERRITTO,
Plaintiff,
vs.
CUYAHOGA COUNTY, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 1:16CV475
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:

This matter comes before the Court upon Defendant Frank Bova’s Motion to Dismiss
(ECF DKT #28). For the following reasons, the Court grants Bova’s Motion to Dismiss.
FACTUAL HISTORY
Plaintiff makes the following allegations in his Second Amended Complaint (ECF DKT
#21). On March 9, 2015, Plaintiff became ill during a visit with his parents in the Cuyahoga
County jail. (ECF DKT #21, ¶ 12). Plaintiff’s parents sought help from the Cuyahoga County
Sheriff’s Department by pressing the alert button for an emergency and Corrections Officer
Fletcher was dispatched to get Plaintiff. (ECF DKT #21, ¶ 14, 15). Fletcher brought Plaintiff to

Brendan Johnson’s office where Plaintiff informed Johnson that he was not feeling well. (ECF
DKT #21, ¶ 16, 17). Johnson disregarded Plaintiff’s symptoms and concerns regarding his
health and ordered Plaintiff back to his pod. (ECF DKT #21, ¶ 18, 19). Johnson then dragged
Plaintiff into the hallway while Fletcher observed. (ECF DKT #21, ¶ 21).
Plaintiff persisted in his complaint regarding his medical condition and asked to be taken
to the medical dispensary. (ECF DKT #21, ¶ 22). In response, Johnson dragged him to the
medical dispensary. (ECF DKT #21, ¶ 23). Once at the medical dispensary, Plaintiff asked
Johnson for his name and identification and Johnson refused to provide Plaintiff with the
information. (ECF DKT #21, ¶ 24, 25). As punishment for Plaintiff’s inquiry, Johnson
compelled Plaintiff to stand, causing Plaintiff to collapse. (ECF DKT #21, ¶ 27). Johnson then
pulled at Plaintiff’s right arm and shoulder, causing injury, and subsequently dragged Plaintiff
into the hallway where he yanked Plaintiff’s right arm behind his back and pushed him up
against a wall, causing further injury. (ECF DKT #21, ¶ 28-30).
Plaintiff alleges that Johnson’s acts and conduct arose out of the failure of Defendants
Cuyahoga County and Bova to provide adequate training to Johnson. (ECF DKT #21, ¶ 43). As
a result, Johnson was not made aware that the use of unreasonable force would violate the
constitutional rights of persons in the Cuyahoga County jail. (ECF DKT #21, ¶ 43). Plaintiff
further alleges that the absence of clear governmental policy and sufficiently instructing
Johnson that the use of unreasonable force would violate the constitutional rights of those in the
jail resulted in Plaintiff’s injuries. (ECF DKT #21, ¶ 44). Plaintiff also indicates that neither
Cuyahoga County nor Bova disciplined Johnson. (ECF DKT #21, ¶ 45). Plaintiff alleges that
failure to provide policy, education and sanctions for the use of excessive force permitted

2

Johnson to engage in a pattern of unreasonable force involving Plaintiff, which shows
Defendants implicitly authorized official misconduct and were deliberately indifferent to
Plaintiff’s rights and safety. (ECF DKT #21, ¶ 46).
Based on the foregoing allegations, Plaintiff alleges that Defendant’s actions and conduct
using excessive force violated Plaintiff’s rights under the Fourth and Fourteenth Amendments to
the Constitution of the United States in contravention of the Civil Rights Act of 1871, 42 U.S.C.
§ 1983. (ECF DKT #21, ¶ 46). Bova has filed a Motion to Dismiss the claims against him.
(ECF DKT #28).
LAW AND ANALYSIS
I. Legal Standard
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 set forth in the complaint. Ashcroft v. Iqbal, 550 U.S. 544, 555
(2007). If the complaint contains sufficient factual allegations that, when accepted as true, “state
a claim to relief that is plausible on its face,” the complaint will survive the motion to dismiss.
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if 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. While the complaint need not contain “detailed
factual allegations,” it must contain more than “a formulaic recitation of the elements of a cause
of action.” Hensley Mfg. v. Pro-Pride, Inc., 589 F.3d 603, 609 (6th Cir. 2009) (quoting
Twombly, 550 U.S. at 555).
II. Plaintiff’s 42 U.S.C. § 1983 Claim Against Bova
Bova has moved to dismiss all claims against him for failure to state a claim. In his

3

Complaint, Plaintiff alleges that in his capacity as sheriff of Cuyahoga County, Ohio, Bova failed
to adequately train, provide policy, educate and sanction Johnson. As a result of Bova’s failures,
Plaintiff alleges that Johnson was not made aware that his use of unreasonable force violated
Plaintiff’s constitutional rights. Plaintiff now seeks to hold Bova liable under 42 U.S.C. § 1983
for violations of Plaintiff’s Fourth and Fourteenth Amendment rights.
A. Bova is Entitled to Qualified Immunity
When government officials acting under color of state law commit violations of
constitutional rights, they are generally subject to liability under 42 U.S.C. § 1983. Peatross v.
Cty. of Memphis, 818 F.3d 233, 240 (6th Cir. 2016). The doctrine of qualified immunity,
however, protects government officials from liability “insofar as their conduct does not violate
clearly established . . . constitutional rights of which a reasonable person would have known.”
Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether a
government official is entitled to qualified immunity, the court conducts a two-part analysis.
The court must determine: 1) whether the officer’s conduct violated Plaintiff’s constitutional
right and 2) whether “the right was clearly established” at the time of the violation. Silberstein v.
Cty. of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). The court has the authority to decide which
prong of the analysis it wishes to address first. Peatross, 818 F.3d at 240.
B. Bova Cannot be Subject to Liability Under a Theory of Respondeat
Superior
Plaintiff seeks to hold Bova liable under a claim of supervisory liability. It is well-settled
that “[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under the theory of respondeat superior.” Peatross, 818 F.3d at 241 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Stated differently, a supervisor cannot be held
4

liable for the actions of his subordinates solely because he was charged with overseeing those
subordinates. Peatross, 818 F.3d at 241 (citing Gregory v. City of Louisville, 444 F.3d 725, 751
(6th Cir. 2006)).
Further, a supervisor’s mere failure to act will not be sufficient to attach liability as
“[t]here must be some conduct on the supervisor’s part to which the plaintiff can point that is
directly correlated with the plaintiff’s injury.” Peatross, 818 F.3d at 241 (quoting Essex v. Cty.
of Livingston, 518 Fed. Appx. 251, 257 (6th Cir. 2013)). Additionally, “[a] supervisory official’s
failure to supervise, control or train the offending individual is not actionable unless the
supervisor either encouraged the specific incident of misconduct or in some other way directly
participated in it.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). The Sixth Circuit has
interpreted this to mean that, “at a minimum,” plaintiff is required to show that the defendant “at
least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers.” Id.; see also Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 543 (6th Cir.
2008).
In order for Plaintiff’s Complaint to survive a motion to dismiss, Plaintiff must
sufficiently allege facts that Bova authorized, approved or knowingly acquiesced in Johnson’s
unconstitutional conduct. Plaintiff’s Complaint does allege that Bova’s failure to provide policy,
education or sanctions for the use of excessive force implies that Bova implicitly authorized the
misconduct and was deliberately indifferent to it. (ECF DKT #21, ¶ 46). While implicit
authorization is often sufficient to attach supervisory liability, that is not the case where the only
allegation of implicit authorization is a supervisor’s failure to act. Plaintiff’s Complaint is
devoid of any allegation that Bova took any action or engaged in conduct that would allow the

5

Court to reasonably infer that Bova authorized Johnson’s behavior.
Because Plaintiff must identify Bova’s conduct that is directly correlated with his injury
and Plaintiff has failed to do so, Plaintiff has failed to sufficiently allege that Bova is subject to
supervisory liability under § 1983. As Bova is not subject to supervisory liability, he is
protected by qualified immunity. “Although a motion pursuant to Rule 12(b)(6) invites an
inquiry into the legal sufficiency of the complaint, not an analysis of potential defenses to the
claims set forth therein, dismissal nevertheless is appropriate when the defendant is entitled to a
meritorious affirmative defense such as qualified immunity.” Peatross, 818 F.3d at 240.
Plaintiff has failed to state a claim for which relief can be granted under § 1983 and therefore,
his claim against Defendant Bova is dismissed.
CONCLUSION
For all the above-mentioned reasons, the Court GRANTS Defendant’s Motion to Dismiss
and DISMISSES Plaintiff’s claims against Defendant Bova without prejudice.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: February 16, 2018

6