A.A. et al v. Otsego Local Schools Board of Education et al

Filing 32

Memorandum Opinion: Defendant's motion for judgment on the pleading is granted in part as to portions of the Eleventh Claim, but denied in part as to the remaining claims regarding Defendant Ruckstuhl. The motion is also denied as moot ag ainst Otsego Local Schools, the Wood County Sheriff's Department, and Wood County, Ohio. The Plaintiffs are granted two weeks from the date of this decision to dismiss their Third Claim for relief as noted in their opposition or the Defendant's motion, upon request, will be reinstated. re 20 . Judge Jeffrey J. Helmick on 12/21/2016. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

A.A., et al.,

Case No. 3:15-cv-1747
Plaintiffs

v.

MEMORANDUM OPINION

Otsego Local Schools Board of Education, et al.,
Defendants
I. BACKGROUND
This matter is before me on Defendants’ motion for judgment on the pleadings (Doc. No.
20), Plaintiffs’ opposition (Doc. No. 25), and Defendant’s reply (Doc. No. 30). For the reasons
stated below, the motion for judgment on the pleadings is granted in part and denied in part.
The relevant factual background surrounding this litigation was set forth in the amended
complaint as follows:
10. During the academic year 2014-15, A.A. was enrolled as a student at the
Otsego Elementary School. From the beginning of that academic year, A.A.
began to experience taunting and bullying from the other students based
upon his national origin. The abuse was both physical and oral in nature,
and occurred both on school grounds as well as on the school bus.
11. Mrs. Demirovic repeatedly complained to Otsego officials, including but not
limited to A.A’s teachers, the Principal of the School, and the Superintendent
of Schools, of this disparate treatment of her son based upon his national origin.
Mrs. Demirovic repeatedly requested that Otsego take appropriate
actions to remedy the situation and protect her son from this physical and
emotional harassment which was based upon his national origin. Otsego
and its agents and employees failed to take appropriate action to remedy the
situation and protect A.A.
12. Indeed the only actions taken by Otsego were retaliatory in nature. Rather
than take any action against other children whose national origin was not in
question, Otsego (through its agents) relocated A.A. on the school bus to sit

with children of a much younger age, thus exacerbating the problems he
experienced with bullying and harassment by his fellow classmates.
13. On or about September 30, 2014, A.A. joined a group of students who were
discussing in jest a computer hacking incident wherein one student’s
computer had been hacked and a threatening message posted. The content
of the message was a threat to kill the student that owned the hacked
computer system. After joining in the conversation, A.A. joked that he was a
computer hacker.
14. As a result of this offhand comment made completely in jest, Otsego –
through its agents and employees – singled out A.A. on the basis of his
national origin and interrogated him (and only him) without the knowledge
or consent of Mrs. Demirovic. Through this interrogation, Otsego
determined that A.A. did not hack into the computer system in question.
15. Regardless of his innocence, and with reckless disregard for A.A.’s safety
and/or reputation at the school, Otsego – through its agents and employees - forced
A.A. to write a false letter to the threatened student reading, in
pertinent part, “I’m sorry for telling you I was the killer.”
16. A.A. was the only child involved in this situation who was so disciplined, and
was singled out by Otsego – through its agents and employees – solely on
the basis of his national origin.
17. On October 1, 2014, A.A. was physically assaulted by a student in retaliation
for the alleged computer hacking incident. Otsego failed to take any action
to protect A.A. from such assault or to punish the student who committed
the assault.
18. On October 8, 2014, while at school, A.A. became upset and was instructed
to go to the principal’s office. He refused. Ruckstuhl happened to be in
attendance at Otsego Elementary School in uniform and acting in his official
capacity at the time. Ruckstuhl was asked by school officials to escort A.A. to
the principal’s office. A.A. refused to go.
19. Without cause or provocation, Ruckstuhl physically seized A.A. and
attempted to relocate him to the principal’s office by force. A struggle
ensued, leading to Ruckstuhl repeatedly assaulting and battering A.A. by
slamming his body to the floor; detaining A.A. without cause; forcibly
placing him in the prone position and restraining him mechanically with
handcuffs; and arresting him.
20.Further, at no point during the interaction between Plaintiff A.A. and
Ruckstuhl was there (a) an imminent danger of physical harm or “direct
threat” to A.A. or to anyone else that required Ruckstuhl to use handcuffs or prone
restraint; or (b) a “direct threat” justification for the placement of the
handcuffs, the prone restraint, or for the prolonged period of time that the
handcuffs and prone restraint were imposed. The only basis for the
handcuffing and prone restraint was Ruckstuhl’s desire for compliance from
A.A.
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21. During this time, Principal Betsey Murry recorded Ruckstuhl’s attack on
A.A. on Ruckstuhl’s cellular phone.
22. After Ruckstuhl forcibly placed A.A. into a position of prone restraint with
handcuffs, Mr. and Mrs. Demirovic were called to come to the school. When
they arrived, Ruckstuhl showed them the video of A.A. being forcibly seized;
placed into prone restraint with handcuffs; and arrested. He informed the
Demirovics that A.A. would not be released from handcuffs until he spoke
with the Wood County Prosecutor.
23. At this same time, Ruckstuhl informed the Demirovics that A.A. would be
charged with several felonies and likely be taken to jail. Ruckstuhl further
stated his belief that A.A.’s actions were a result of his Bosnian heritage.
When Mrs. Demirovic tried to calm A.A. down by speaking to him in
Bosnian, Ruckstuhl instructed her to speak only in English.
24. After allegedly speaking with the Wood County Prosecutor, Ruckstuhl
removed the handcuffs from A.A. and released him from custodial arrest.
A.A. subsequently required and received medical attention for injuries
sustained at the hands of Ruckstuhl.

(Doc. No. 1 at pp. 4-7).
Based upon these factual allegations, Plaintiff, A.A., a minor, by and through his next friend
and mother Mirela Demirovic, as well as his parents, individually, instituted this case with the
following causes of action: (1) violations of Title VII against Otsego Local Schools; (2) violations
under 42 U.S.C. § 1983 of the Fourth and Fourteenth Amendments against Ruckstuhl; (3) violations
under § 1983 of the Eighth and Fourteenth Amendments against Ruckstuhl; (4) assault and battery
against Ruckstuhl; (5) negligent infliction of emotional distress against Ruckstuhl; (6) intentional
infliction of emotional distress against Ruckstuhl; (7) false arrest against Ruchstuhl; (8) false
imprisonment against Ruckstuhl; (9) negligence per se regarding O.R.C. § 3319.41 and Ohio Admin.
Code 3301—35-15 against Otsego and the Wood County defendants; (10) negligence per se
regarding O.R.C. § 3319.46 and Ohio Admin. Code 3301—35-15 against Otsego and the Wood
County defendants; (11) negligence per se regarding O.R.C. § 2919.22 against Otsego and the Wood

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County defendants; (12) respondeat superior against the Wood County Defendants; and (13)
respondeat superior against Otsego Local Schools.
After the Otsego Defendants, the Wood County Defendants, and Ruckstuhl, filed their
respective motions for judgment on the pleadings, Plaintiffs filed a Rule 41(a) dismissal. (Doc. No.
26).
On April 4, 2016, I approved the dismissal of Defendants Otsego Local Schools, Wood
County, Ohio and the Wood County Sheriff’s Department. (Doc. No. 27). Brian Ruckstuhl is the
remaining Defendant in the litigation.
II. RELEVANT LEGAL STANDARDS
The same pleading requirements apply to a motion to dismiss under Fed. R. Civ. P. 12(b)(6)
and a motion for judgment under the pleadings pursuant to Fed. R. Civ. P. 12(c). Sensations, Inc. v.
City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). The pleadings must demonstrate sufficient
factual matter, if taken as true, which state a claim “plausible on its face.” Bell Atl. Corp. v. Twombly
550 U.S. 544, 470 (2007). “A plaintiff falls short if [they] plead[] facts ‘merely consistent with a
defendant’s liability’ or if the alleged facts do not ‘permit the court to infer more than the mere
possibility of misconduct. . . .’” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir.) (quoting Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949-50) cert denied, 131 S.Ct. 1047 (2011). A court “construe[s] the Plaintiffs’
complaint in the light most favorable to them, and accept the complaint’s allegations as true,
drawing all reasonable inferences in favor of the Plaintiffs.” Coley v. Lucas County, Ohio, 799 F.3d 530,
537 (6th Cir. 2015), citing Crugher v. Prelesnik, 761 F.3d 610, 513 (6th Cir. 2014).
On a motion for judgment on the pleadings, all well-pleaded allegations of the non-moving
party must be taken as true. Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008).
Judgment is granted only where there is no material issue of fact involved and the moving party is
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entitled to judgment as a matter of law. Paskavan v. City of Cleveland Civil Service Comm’n, 946 F.2d
1233, 1235 (6th Cir. 1991).
III. DISCUSSION
Defendant Ruckstuhl moves for judgment on the pleadings asserting there are insufficient
factual allegations to support the alleged § 1983 and state law violations. He further contends that
even if the factual allegations are sufficient, he is entitled to qualified or statutory immunity from
suit. I turn to address each of these arguments in turn.
A. Sufficiency of the Factual Allegations
The Defendant challenges the lack of detail in the amended complaint as insufficient to
allege plausible constitutional or state law violations. I disagree.
To survive a motion to dismiss under Rule 12(b)(6), “even though a complaint need not
contain ‘detailed’ factual allegations, its ‘factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true.’”Ass'n
of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than “a
formulaic recitation of the elements of a cause of action”). A complaint must state sufficient facts
to, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (explaining that the plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully” and requires the complaint to allow the court to draw the
reasonable inference that the defendant is liable for the alleged misconduct).

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In conjunction with this standard, the Court is cognizant that Fed. R. Civ. P. 8(a)(2)
“requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’
Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. at 93 (citing Twombly,
550 U.S. at 596); see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir 2008).
The amended complaint is comprised of 23 pages and 101 paragraphs, with the factual
section comprising paragraphs 10 through 32. Ignoring the legal conclusions contained within the
factual recitations, I find there is sufficient detail to put the Defendant on notice of both the federal
and state claims asserted against him. The Defendant’s motion for judgment on the pleadings is
denied as to this branch.
B. Qualified Immunity
Qualified immunity shields “government officials performing discretionary functions… from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).
The analysis employed by the Sixth Circuit in determining qualified immunity focuses on
whether a constitutional right was violated and whether that right was clearly established at the time
such that a reasonable official would have understood that his behavior violated that right. Occupy
Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014), citing Saucier v. Katz, 533 U.S. 194 (2001). In
Pearson, the Supreme Court approved disregarding the mandatory analytical sequence adopted in
Saucier and allowed district courts to “exercise their sound discretion in deciding which of the two
prongs in the qualified immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” 555 U.S. at 236.

While the order of these questions is left to the

discretion of the district court, “if either one is answered in the negative, then qualified immunity
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protects the officer from civil damages.” Goodwin v. City of Painesville, No. 14-3120, 731 F.3d 314, 321
(6th Cir. 2015) (citations omitted).
For purposes of this analysis, I turn to the first issue, namely whether a constitutional right
was violated on the facts alleged. The Defendant’s argument is as follows:
Plaintiffs’ claim that Deputy Ruckstuhl “physically seized” A.A. “by force”
without cause of provision.” (Amend. Comp. ¶19). Plaintiffs admit that after
Deputy Ruckstuhl physically seized A.A. after he refused to go to the principal’s
office voluntarily, “a struggle ensued.” (Amend. Comp. ¶19) A.A. disobeyed
multiple lawful commands and instructions of Deputy Ruckstuhl (Ans. ¶19) The
struggle created a “direct threat” to staff members and students in the area, two
Graham factors that weigh in favor of Ruckstuhl’s reasonable seizure of A.A. Once
A. A. physically resisted his lawful seizure, Deputy Ruckstuhl could not have
assaulted or battered A.A. His actions are privileged from such claims as a law
enforcement officer. Thus, Deputy Ruckstuhl justifiably restrained A.A. and
handcuffed him so that he could do no harm to himself or others. Therefore,
considering all of the facts alleged, Deputy Ruckstuhl did not unlawfully seize A.A.
As for Plaintiff’s claim of excessive force, when there is no allegation of
physical injury, the handcuffing of an individual incident to a lawful arrest is
insufficient as a matter of law to state a claim of excessive force under the Fourth
Amendment. Neague v. Cynkar, 258 F.3d 504 (6th Cir. 2001). Plaintiff’s Complaint
contains no supporting factual allegations supporting the conclusory statement that
A.A. received “medical attention for injuries.” (Amend. Comp. ¶24) . . .
Thus, considering the totality of all the facts and circumstances, Deputy
Ruckstuhl’s physical seizure of A.A. to take him to the principal’s office was
reasonable and not in a violation of the Fourth Amendment. Once A.A. struggled
with Deputy Ruckstuhl, his efforts to control A.A. by restraining him and
handcuffing him were reasonable to protect A.A., the deputy, staff members and
students in the area from harm. A reasonable law enforcement officer would not
have understood that his behavior under the same facts and circumstances violated
A.A.’s Fourth Amendment right against unreasonable seizure.
(Doc. No. 20 at pp. 10-11).
The considerations contemplated under excessive force claims were recently addressed by
this Circuit:
Excessive force claims can be resolved under the Fourth, Eighth and
Fourteenth Amendments—the applicable amendment depends on the plaintiff’s
status at the time of the incident: a free citizen in the process of being arrested or
seized; a convicted prisoner; or someone in “gray area[s]” around the two. Burgess,
735 F.3d at 472; Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002). When a free citizen
claims that a government actor used excessive force during the process of an arrest,
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seizure, or investigatory stop, we perform a Fourth Amendment inquiry into what
was objectively “reasonable” under the circumstances. Graham v. Connor, 490 U.S.
386, 296, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Lanman v. Hinson, 529 F.3d 673,
680 (6th Cir. 2008).

Coley, 799 F.3d at 537.
Reasonable force under a Fourth Amendment claim is guided by factors articulated under
Graham v. Connor, 490 U.S. 386, 395 (1989), and considers: (1) severity of the crime; (2) immediacy of
the threat posed by the suspect; and (3) whether the suspect was actively resisting or attempting to
resist arrest. Dorsey v. Barber, 517 F.3d 389, 401 (6th Cir. 2008). As observed by the Graham Court:
Because “[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520,
559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), however, its proper application
requires careful attention to the facts and circumstances of each particular case . . . .
The “reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight. See Terry v. Ohio, supra, at 20-22.
Graham v. Connor 490 U.S. 386, 396 (1989).
Accepting the Plaintiffs’ factual assertions, Ruckstuhl was instructed by school officials to
escort A.A. to the principal’s office and A.A. refused to go. “Without cause or provocation” the
Defendant is alleged to have seized A.A., a struggle ensued and Ruckstuhl responded by “slamming”
A.A. to the floor, forcibly placing in a prone position and restraining him with handcuffs, then
arresting him. (Doc. No. 15 at ¶ 19). Although the Defendant argues the phrase “without cause or
provocation” is a legal conclusion, it may also certainly be considered a factual statement equating to
the absence of conduct. I consider this for the factual assertion it represents but do not consider it
for its legal conclusion, which I am prohibited from doing so in this Rule 12(c) analysis.

8

The Defendant’s arguments are based upon factual and legal conclusions which have not
been developed through discovery. Those arguments are ones normally asserted in summary
judgment discussions, not ones under Rule 12(c).
To accept the Defendant’s version of events would negate this standard and is premature at
this juncture. In fact, the Sixth Circuit has stated that it is “generally inappropriate for a district
court to grant a Rule 12(b)(6) motion to dismiss on the basis of qualified immunity.” Wesley v.
Campbell, 779 F.3d 421, 433 (6th Cir. 2015).
At this preliminary stage, I find the facts alleged lend themselves to differing conclusions on
whether the Defendant’s conduct constituted reasonable force in these circumstances. See e.g.
Williams v. Nice, 58 F.Supp.3d 833, 838-39 (N.D. Ohio 2014), aff’d sub nom, Williams v. Morgan, 652
Fed. Appx. 365 (6th Cir. 2016) (genuine issues of material fact existed where eighth grade student
threw a temper tantrum after being suspended, resisted arrest and whether the school resource
officer used excessive force in restraining her where the student posed no safety threat and suffered
injuries).
While the Defendant challenges the allegation of physical injury, I find A.A. has alleged
enough to withstand a Rule 12(c) challenge. Taking the factual allegations in a light most reasonable
to the plaintiff, “slamming [A.A.’s] body to the floor” coupled with the statement that he
“subsequently required and received medical attention for his injuries,” meets the pleading standards
for properly alleged injury at this preliminary stage of the litigation. The Defendant’s authority in
support on this branch of its motion cites cases involving summary judgment determinations1 unlike
the present situation where discovery has yet to begin.

A case relied on by the Defendant was reversed by the Sixth Circuit as the court found the existence of genuine issues
of material fact on the excessive force claim and reversed the finding of qualified immunity as to the law enforcement
officer at the summary judgment stage. Solovy v. Morabito, 608 F.Supp.2d 859 (E.D. Mich., 2009), rev’d in part 375 Fed.
Appx. 521, 525-27 (6th Cir. 2010).
9
1

As the allegations raise a colorable claim of unreasonable force, I cannot find as a matter of
law that the Defendant’s conduct did not violate A.A.’s Fourth Amendment rights.
The second inquiry is whether the right was clearly established and whether a reasonable
officer would have known that his conduct violated that right. Courtright v. City of Battle Creek, 839
F.3d 513, 518 (6th Cir. 2016). The Sixth Circuit found the prohibition against gratuitous force was
clearly established as of October 2010, albeit in a summary judgment context. Williams v. Morgan,
652 Fed.Appx. 365, 375 (6th Cir. 2016), citing Norton v. Stille, 526 Fed.Appx. 509, 513-14 (6th Cir.
2013) and Hope v. Pelzer, 536 U.S. 730, 741(2002).
Therefore, I find the Defendant is not entitled to qualified immunity at this juncture of the
proceedings.
C. Statutory Immunity
The same factual issues pertaining to the allegation of gratuitous force towards an
elementary student also precludes dismissal on state statutory grounds. The Ohio Political
Subdivision Tort Liability Act allows for immunity unless the “acts or omissions were with malicious
purpose, in bad faith or in a wanton or reckless manner.” R.C. § 2744.03(a)(6). The amended
complaint contains sufficient allegations and inferences which survive a Rule 12(c) challenge. If
reasonable minds could differ on whether his actions towards A.A. were unreasonable, there is
sufficient grounds to argue they rise to exceptions stated under § 2744.03(a)(6) and will undoubtedly
be the subject of discovery by both parties. Coley, 799 F.3d at 543-44.
D. Remaining Claims
1. Remaining Federal Claims
Defendant also challenges Plaintiffs’ claim of cruel and unusual punishment in violation of
the Eighth Amendment.. The Plaintiffs agree with the Defendant’s statement of law as to this claim
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and state, they “will dismiss this claim.” (Doc. No. 25 at p. 12). Accordingly, I will deny this branch
of the Defendant’s motion as moot.
2.

State Law Claims

As I have determined the factual allegations to be sufficient regarding the Fourth
Amendment violations, I also find the amended complaint to be sufficient as to the state law claims
raised in the Fourth, Fifth, Sixth, Seventh, and Eighth claims for relief.
a. Negligence Per Se Claims
Defendant also challenges the legal viability of the claims contained in the Ninth, Tenth, and
Eleventh claims for relief sounding in negligence per se. He charges they must fail as a matter of
law because Ruckstuhl is not an individual subject to these statutes or regulations.
Plaintiffs assert three negligence per se claims:
XIII. Ninth Claim for Relief -- Negligence Per Se
69. Plaintiffs incorporate herein by reference the allegations set forth in
paragraphs 1 through 32 and do further allege as follows:
70. Ohio Revised Code §3319.41 and the regulations of the Ohio Board of
Education Ohio Admin. Code 3301-35-15 protect students such as A.A. by
prohibiting School officials and those under their direction and control from:
a. The use of mechanical restraints such as handcuffs;
b. The use of prone restraint;
c. Restraint of any kind that unduly risks serious harm or needless
pain to the student, including the intentional, knowing or reckless use
of any of the following techniques:
1) Any method of limiting respiration;
2) Pinning down with knees to torso, head and/or neck;
3) Using pressure points, pain compliance, and joint
manipulation techniques;
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4) Dragging or lifting of the student by any type of
mechanical restraint; and
5) Using students or untrained staff to assist with the hold or
restraint.

71. Plaintiff A.A. experienced physical pain, trauma and significant
emotional distress during the October 2014 handcuffing and prone restraint.
Thereafter, as a result of the handcuffing and prone restraint, he suffered and
continues to suffer emotional distress.
72. Defendants had a duty to protect A.A. from handcuffing and prone
restraint as prohibited by Ohio law.
73. Defendants not only failed in this duty, but Otsego both conspired with
and aided and abetted Ruckstuhl in handcuffing A.A. and placing him in prone
restraint.
74. Said actions are violations of Ohio Revised Code §§ of 2903.13 (assault)
and 2923.03 (complicity) for which there is civil liability pursuant to Ohio Revised
Code §2307.60.
75. As a direct consequence of these actions, A.A. has suffered and
continues to suffer mental anguish, embarrassment, humiliation, pain and suffering,
for which he is entitled to compensatory damages and attorney’s fees.
XIV. Tenth Clam for Relief -- Negligence Per Se
76. Plaintiffs incorporate herein by reference the allegations set forth in
paragraphs 1 through 32 and do further allege as follows:
77. Ohio Revised Code §3319.46 and the regulations of the Ohio Board of
Education Ohio Admin. Code 3301-35-15 protect students such as A.A. by
prohibiting School officials and those under their direction and control from:
a. The use of mechanical restraints such as handcuffs;
b. The use of prone restraint;
c. Restraint of any kind that unduly risks serious harm or needless
pain to the student, including the intentional, knowing or reckless use
of any of the following techniques:
1) Any method of limiting respiration;
2) Pinning down with knees to torso, head and/or neck;
3) Using pressure points, pain compliance, and joint
manipulation techniques;
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4) Dragging or lifting of the student by any type of
mechanical restraint; and
5) Using students or untrained staff to assist with the hold or
restraint.

78. Plaintiff A.A. experienced physical pain, trauma and significant
emotional distress during the October 2014 handcuffing and prone restraint.
Thereafter, as a result of the handcuffing and prone restraint, he suffered and
continues to suffer emotional distress.
79. Defendants had a duty to protect A.A. from handcuffing and prone
restraint as prohibited by Ohio law.
80. Defendants not only failed in this duty, but Otsego both conspired with
and aided and abetted Ruckstuhl in handcuffing A.A. and placing him in prone
restraint.
81. Said actions are violations of Ohio Revised Code §§ of 2903.13 (assault)
and 2923.03 (complicity) for which there is civil liability pursuant to Ohio Revised
Code §2307.60.
82. As a direct consequence of these actions, A.A. has suffered and
continues to suffer mental anguish, embarrassment, humiliation, pain and suffering,
for which he is entitled to compensatory damages and attorney’s fees.
XV. Eleventh Claim for Relief -- Negligence Per Se
83. Plaintiffs incorporate herein by reference the allegations set forth in
paragraphs 1 through 32 and do further allege as follows:
84. Ohio Rev. Code 2919.22 provides as follows:
(A) No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a child under
eighteen years of age or a mentally or physically handicapped child
under twenty-one years of age, shall create a substantial risk to the
health or safety of the child, by violating a duty of care,
protection, or support under this division when the parent, guardian,
custodian, or person having custody or control of a child treats the
physical or mental illness or defect of the child by spiritual means
through prayer alone, in accordance with the tenets of a recognized
religious body.
(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child;
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(2) Torture or cruelly abuse the child; or
(3) Administer corporal punishment or other physical
disciplinary measure, or physically restrain the child in a cruel
manner or for a prolonged period, which punishment,
discipline, or restraint is excessive under the
circumstances and creates a substantial risk of serious
physical harm to the child.
85. Defendant Otsego Local Schools, by virtue of its relationship with A.A.,
had custody and control of A.A. during school hours.
86. Defendants’ actions taken against A.A. through Ruckstuhl and at the
direction of Otsego Local Schools were in direct violation of Ohio Rev. Code
2919.22.
87. Plaintiff A.A. experienced physical pain, trauma and significant
emotional distress during the October 2014 handcuffing and prone restraint.
Thereafter, as a result of the handcuffing and prone restraint, he suffered and
continues to suffer emotional distress.
88. Defendants had a duty to protect A.A. from handcuffing and prone
restraint as prohibited by Ohio law.
89. Defendants not only failed in this duty, but Otsego both conspired with
and aided and abetted Ruckstuhl in handcuffing A.A. and placing him in prone
restraint.
90. Said actions are violations of Ohio Revised Code §§ of 2903.13 (assault)
and 2923.03 (complicity) for which there is civil liability pursuant to Ohio Revised
Code §2307.60.
91. As a direct consequence of these actions, A.A. has suffered and
continues to suffer mental anguish, embarrassment, humiliation, pain and suffering,
for which he is entitled to compensatory damages and attorney’s fees.
(Doc. No.15 at pp. 16-20).
The applicable statutes cited in the Ninth and Tenth causes of action cite to sections dealing
with positive behavior intervention support; use of physical restraint or seclusion on students
pursuant to Ohio Rev. Code § 3319.46, and corporal punishment; and reasonable force and restraint
under Ohio Rev. Code § 3319.41.

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Under § 3319.41(A), “no person employed or engaged as a teacher, principal, administrator,
nonlicensed school employee, or bus driver in a public school may inflict or cause to be inflicted
corporal punishment as a means of discipline upon a pupil attending such school.”
The amended complaint identifies Defendant Ruckstuhl as “a law-enforcement officer
employed by Wood County, Ohio.” (Doc. No. 15 at ¶ 9). Nothing in the amended complaint or in
Plaintiffs’ memorandum in opposition disputes Ruckstuhl qualifies as a person subject to these
statutes. Nor do Plaintiffs offer any authority to support their position. In the absence of any
authority, the Ninth and Tenth causes of action are dismissed as a matter of law.
Ohio Rev. Code § 2919.22 is Ohio’s child endangerment statute and the Eleventh Cause of
Action seeks to impose negligence per se liability via this statute. The Defendant moves for
dismissal of this claim as the Defendant is a “parent, guardian, custodian or a person having custody
or control” of A.A. Plaintiffs contend the statute does not limit the statute to solely parents or
guardians.
At least one Ohio appellate court found negligence per se was inapplicable to § 2219.22(A).
Hite v. Brown, 100 Ohio App.3d 606, 612 (1995). The same cannot be said for § 2219.22(B). The
Defendant contends that analysis under this section requires an evaluation of “a variety of facts and
circumstances—applying the standard of a reasonably prudent person—to determine whether a
violation of this statute occurred.” Given the early stage of this litigation and considering the factual
allegations contained in the amended complaint, the claims under § 2219.22(B) remain viable for the
time being.
I do agree with Defendant that the allegations in this claim aimed at civil recovery for a
criminal act (assault and complicity) are not viable in the absence of a criminal conviction. See Ohio
Rev. Code § 2307.60. Ortiz v. Kazmier, 2015 WL 1400549 *12 (N.D. Ohio 2015), aff’d 811 F.3d 848
(6th Cir. 2016).
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Therefore, the Eleventh Cause of action is limited to an alleged violation of Ohio Rev. Code
§ 2919.22(B) and the related claim in paragraph 90 is dismissed as a matter law.
IV. CONCLUSION
For the reasons stated above, Defendant’s motion for judgment on the pleading (Doc. No.
20) is granted in part as to portions of the Eleventh Claim, but denied in part (Doc. No. 20) as to
the remaining claims regarding Defendant Ruckstuhl.
The motion (Doc. No. 20) is also denied as moot against Otsego Local Schools, the Wood
County Sheriff’s Department, and Wood County, Ohio.
The Plaintiffs are granted two weeks from the date of this decision to dismiss their Third
Claim for relief as noted in their opposition or the Defendant’s motion, upon request, will be
reinstated.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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