Lenard v. City of Cleveland et al

Filing 6

Opinion and Order. This action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Christopher A. Boyko on 6/30/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD LENARD,
Plaintiff,
v.
CITY OF CLEVELAND, et al.,
Defendants.

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CASE NO. 1:17 CV 440
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:

Pro se Plaintiff Richard Lenard filed this action under 42 U.S.C. § 1983 against the City
of Cleveland, the Cuyahoga County Prosecutor’s Office, the Cuyahoga County Sheriff’s
Department and the Cuyahoga County Jail. In the Complaint, Plaintiff alleges he has been held
in the Cuyahoga County Jail on a heightened security floor without telephone and mail
privileges and without proper nutrition. He asserts claims for negligence, malicious prosecution,
intentional infliction of emotional distress, dereliction of duty and conversion. He seeks
monetary and injunctive relief.

I. BACKGROUND
Plaintiff was charged in five separate indictments in 2015 and 2016. See State of Ohio v.
Lenard, Nos. CR-15-602274, CR 15-599742, CR-15-602350, CR-15-597800, and CR-16-

602457 (Cuyahoga Cty Ct. Comm. Pleas). In Case Nos. CR-15-602274 and CR-15-602350, he
was charged with Attempted Murder, four counts of Felonious Assault, two counts of
Aggravated Robbery, three counts of Kidnaping, two counts of Disrupting Public Services and
two counts of Criminal Damaging. In the remaining criminal cases, Plaintiff was charged with
two counts of Securing Records by Deception, Identity Fraud, two counts of Tampering with
Records, Aggravated Theft, Forging Identification Cards and two counts of Grand Theft. Bond
was set in each of these criminal cases. He remained in the Cuyahoga County Jail unable to post
the aggregate total bond of $1,400,000.00.
Cuyahoga County Common Pleas Court Judge Maureen Clancy issued a pretrial order
barring Plaintiff from having any contact with the victim in Case Nos. CR-15-602274 and CR15-602350. These cases resulted from incidents of domestic violence that occurred on
November 21, 2015 and October 7, 2015. On both dates, Plaintiff physically assaulted
Kassandra Anne Hankins by repeatedly punching her, slamming her into the ground, stomping
her, dragging her up and down stairs, kicking her and strangling her. When she began to bleed
during the incident on November 21, 2015, Plaintiff stopped to put on latex gloves to keep from
getting blood on himself. During the October incident, Hankins grabbed a knife to defend
herself. Plaintiff took the knife from her and used it to cut her hair off. Despite the no contact
order, Plaintiff called Hankins seventy-six times from December 21, 2015 to January 20, 2016,
sometimes using the pin numbers of other inmates to get the call through. He also mailed letters
to her. In these conversations, he told Hankins what she had to do to drop the charges against
him and instructed her on how to answer questions posed to her by prosecutors. Because

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Plaintiff continually violated the no contact order, his telephone and mail privileges were
suspended and he was placed in a more secure area of the jail.
Plaintiff complains that while he was in segregation, he was not fed nutritious meals,
was denied two hours of exercise a week, was denied participation in group religious services
and was permitted to leave his cell only to shower. Even after he was moved from segregation,
he was housed on a more restrictive floor and was prohibited from having telephone or mail
privileges.
Plaintiff asserts four Counts for relief. In Count One, he contends the Defendants were
negligent and denied him access to the courts when they failed to allow him to use the telephone
to call his attorney or family, violated his First Amendment right to practice his religion,
exposed him to cruel and unusual punishment by denying him two hours of exercise each week
and denied him due process before confining him to a higher security floor of the jail. In Count
Two, he contends the Defendants engaged in malicious prosecution and intentionally inflicted
emotional distress. In Count Three, Plaintiff lists claims for conversion and negligence when
they deprived him of real property in Garfield Heights, Ohio by incarcerating him and making it
difficult for him to pay his mortgage. He also claims his collective bail is excessive. Finally, he
claims in Count Four that the Defendants engaged in malicious prosecution and were negligent
when they seized, opened and read a letter he had in his possession and used it as evidence
against him when he was indicted by the grand jury. He also contends they failed to take proper
care to treat him for lead poisoning or treat the water supply in the jail for lead. Plaintiff asks
the Court to award him $ 12,000,000.00 in damages and issue injunctive relief.

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II. LAW AND ANALYSIS
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is required to
dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon
which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams,
490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law when the
Defendant is immune from suit or when the Plaintiff claims a violation of a legal interest which
clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when
the allegations are delusional or rise to the level of the irrational or “wholly incredible.” Denton
v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199.
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555.
The Plaintiff is not required to include detailed factual allegations, but must provide more than
“an unadorned, the-Defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A
pleading that offers legal conclusions or a simple recitation of the elements of a cause of action
will not meet this pleading standard. Id. In reviewing a Complaint, the Court must construe the
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pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151
F.3d 559, 561 (6th Cir. 1998).
City of Cleveland
As an initial matter, Plaintiff does not allege any wrong-doing by the City of Cleveland,
or any of its employees. Plaintiff cannot establish the liability of any Defendant absent a clear
showing that the Defendant was personally involved in the activities which form the basis of the
alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v.
Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept. 20, 1995). It is unclear from the
Complaint how the City of Cleveland was involved in the events Plaintiff describes. He failed
to state a claim against this Defendant.
Cuyahoga County
Furthermore, the Cuyahoga County Prosecutor’s Office, Sheriff’s Office and Jail
Corrections Center are not proper Defendants. They are not sui juris, meaning they are not
independent legal entities capable of suing or being sued. They are merely subunits of
Cuyahoga County. See Batchik v. Summit County Sheriff's Dept., No. 13783, 1989 WL 26084
(Ohio Ct. App. Mar. 15, 1989); Barrett v. Wallace, 107 F.Supp.2d 949, 954 (S.D. Ohio 2000)
(under Ohio law, a county sheriff’s office is not a legal entity capable of being sued); Johari v.
City of Columbus Police Dept., 186 F.Supp.2d 821, 825 (S.D. Ohio 2002) (holding that the
police department lacks capacity to be sued because “the Division of Police is an administrative
vehicle by which the city operates and performs its functions.”). Claims asserted against them
are construed against Cuyahoga County.

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Section 1983 does not permit a Plaintiff to sue a local government entity on the theory
of respondeat superior. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 692-94
(1978). A Plaintiff may only hold a local government entity liable under § 1983 for the entity’s
own wrongdoing. Id. A local government entity violates § 1983 where its official policy or
custom actually serves to deprive an individual of his or her constitutional rights. Id. In
addition, “there must be a direct causal link between the policy and the alleged constitutional
violation such that the municipality’s deliberate conduct can be deemed the moving force behind
the violation.” Id.
Here, Plaintiff does not identify a particular policy of Cuyahoga County that the
Defendants were following, nor does he connect that policy to the violations he alleges. In fact,
Plaintiff’s placement in segregation was the direct result of Plaintiff’s repeated violation of the
trial court’s no contact order. His claims against Cuyahoga County are dismissed.
Claims Against Unnamed Individual Defendants
To the extent Plaintiff was attempting to assert his claims against unnamed individual
Defendants by suing the entire department, he failed to state a claim. Plaintiff cannot establish
the liability of any Defendant absent a clear showing that the Defendant was personally involved
in the activities which form the basis of the alleged unconstitutional behavior. Rizzo v. Goode,
423 U.S. 362, 371 (1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir.
Sept. 20, 1995). Generalized allegations against an entire department are not sufficient to hold
any individual within that department personally liable for damages.

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Prosecutorial Immunity
Furthermore, even if Plaintiff had named individual prosecutors as Defendants, he still
could not proceed with his claims against them. Prosecutors are also entitled to absolute
immunity from damages for initiating a prosecution and in presenting the state’s case. Imbler v.
Pachtman, 424 U.S. 409, 431 (1976); Pusey v. Youngstown, 11 F.3d 652, 658 (6th Cir. 1993).
A prosecutor must exercise his or her best professional judgment both in deciding which suits to
bring and in conducting them in court. Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006).
This duty could not be properly performed if the prosecutor is constrained in making every
decision by the potential consequences of personal liability in a suit for damages. Id. These
suits could be expected with some frequency, for a defendant often will transform his
resentment at being prosecuted into the attribution of improper and malicious actions to the
State’s advocate. Imbler, 424 U.S. at 424-25; Skinner, 463 F.3d at 525. Absolute immunity is
therefore extended to prosecuting attorneys when the actions in question are those of an
advocate. Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003). Immunity is granted not
only for actions directly related to initiating a prosecution and presenting the State’s case, but
also to activities undertaken “in connection with [the] duties in functioning as a prosecutor.”
Imbler, 424 U.S. at 431; Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002). In this
instance, Plaintiff’s claims against the Cuyahoga County Prosecutors are all based on their
decision to prosecute him and their actions in connection with his prosecution. Consequently,
any individual prosecutors would be entitled to absolute immunity from liability in this case.

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Claims Challenging His Conviction
Moreover, Plaintiff asserts claims pertaining to telephone access to his attorney and
malicious prosecution, which, if found to have merit, could imply the invalidity of his criminal
convictions. In order to recover damages for an allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 Plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 486 (1994). A
claim for damages bearing that relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Therefore, when a state prisoner seeks damages in a
§ 1983 suit, the Court must consider whether a judgment in favor of the Plaintiff would
necessarily imply the invalidity of his conviction or sentence. If it would, as in this case, the
claims must be dismissed unless the Plaintiff can demonstrate that the conviction or sentence
has already been invalidated. Plaintiff gives no indication that his convictions have been
reversed or set aside. Consequently, he cannot proceed with these claims.
Excessive Bail
Plaintiff claims the collective amount of bail set in each of his criminal cases is
excessive in violation of the Eighth Amendment. Even if individual County Prosecutors,
Sheriff’s Deputies, or Jail Officials were named as Defendants, this claim could not proceed
against any of them. The Common Pleas Court Judge presiding over the case ultimately
determines bail amounts, not the Prosecutors, Sheriff’s Deputies or Jail Officials. See Marsh v.
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Randolph, No. 1:09–cv–13, 2012 WL 397778, * 6 (E.D. Tenn. Feb.7, 2012) (noting that an
prosecutor’s request that the Plaintiff's bond be set at $1,000,000 did not amount to a
constitutional violation because the judge, not the prosecutor, imposed the Plaintiff’s bond);
Ghaith v. Rauschenberger, No. 11-1780, 493 Fed. Appx. 731, 739-40 (6th Cir. Aug. 4, 2012)
(affirming district court’s dismissal of the Plaintiff’s Eighth Amendment excessive bail claim
where none of the defendant police officers and prosecutors were directly involved in the state
court’s decision to impose the bond at issue).
Furthermore, this Court cannot act through a civil rights action to order a state court to
reduce Plaintiff’s bail in pending state court pending criminal proceedings. See Younger v.
Harris, 401 U.S. 37, 44-45 (1971). When a person is the target of an ongoing state action
involving important state matters, he or she cannot interfere with the pending state action by
maintaining a parallel federal action involving claims that could have been raised in the state
case. Watts v. Burkhart, 854 F.2d 839, 844-48 (6th Cir. 1988). If the state Defendant files such
a case, Younger abstention requires the federal court to defer to the state proceeding. Id; see
also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Based on these principles, abstention
is appropriate if: (1) state proceedings are on-going; (2) the state proceedings implicate
important state interests; and (3) the state proceedings afford an adequate opportunity to raise
federal questions. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,
432 (1982). Abstention is mandated whether the state court proceeding is criminal,
quasi-criminal, or civil in nature as long as federal court intervention “unduly interferes with the
legitimate activities of the state.” Younger, 401 U.S. at 44.

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All three factors supporting abstention are present. Several of Plaintiff’s criminal cases
are still pending. State court criminal matters are of paramount state interest. See Younger, 401
U.S. at 44-45. The third requirement of Younger is that Plaintiff must have an opportunity to
assert his federal challenges in the state court proceeding. The pertinent inquiry is whether the
state proceedings afford an adequate opportunity to raise the federal claims. Moore v. Sims, 442
U.S. 415, 430 (1979). The burden at this point rests on the Plaintiff to demonstrate that state
procedural law bars presentation of his claims. Pennzoil Co., 481 U.S. at 14. When a Plaintiff
has not attempted to present his federal claims in the state court proceedings, the federal court
should assume that state procedures will afford an adequate remedy in the absence of
“unambiguous authority to the contrary.” Pennzoil, 481 U.S. at 15. Here, there has been no
showing that Plaintiff could not attempt to get his bail reduced in the state courts. The
requirements of Younger are satisfied and this Court must abstain from interfering in any
pending state court criminal action against the Plaintiff.
Religion Claims
Plaintiff also includes general, unexplained claims for denial of the practice of his
religion and denial of exercise. He does not identify his religion or allege facts suggesting how
he was prevented from engaging in its practice. He indicates he was denied two hours of
outdoor exercise per week but does not allege any other facts suggesting he was denied all types
of physical activity or the length of time these restrictions were in place. These claims are stated
solely as legal conclusions without supporting facts. Legal conclusions alone are not sufficient
to present a valid claim. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987);

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see also Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971) (conclusory section 1983 claim
dismissed).
Security Classification
Plaintiff contends he was denied due process when he was housed in a higher security
floor of the jail. Notably, this move occurred after he was found to have violated the court’s no
contact order on multiple occasions, sometimes using the credentials of other inmates to avoid
detection. Plaintiff has no constitutional right to be held in a particular part of the jail, or to be
held under a specific security classification. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983);
Cash v. Reno, No. 97-5220, 1997 WL 809982 (6th Cir. Dec. 23, 1997).
State Law Claims
Finally, Plaintiff’s claims for negligence, conversion and intentional infliction of
emotional distress arise, if at all, under state tort law. Supplemental jurisdiction exists whenever
state law and federal law claims derive from the same nucleus of operative facts and when
considerations of judicial economy dictate having a single trial. United Mine Workers of
America v. Gibbs, 383 U.S. 715, 724 (1966). The Court, however, may exercise discretion in
hearing state law matters. Id. at 726. In cases where the federal law claims are dismissed before
trial, the state law claims should also be dismissed. Id. Having dismissed plaintiff’s federal law
claims, this court declines jurisdiction to hear plaintiff’s state law claims.

III. CONCLUSION
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.
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IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: June 30, 2017

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