Rafferty, et al v. Trumbull County, Ohio et al

Filing 117

Memorandum of Opinion and Order For the reasons set forth herein, Defendant Charles Drennen's Motion for Summary Judgment, ECF No. 103 , is granted in part and denied in part, and Trumbull County Defendants' Motion for Summary Judgm ent on Plaintiffs' Amended Complaint, ECF No. 99 , is granted. The only remaining claim in this case is Plaintiff Sherman's 42 U.S.C. § 1983 claim against Defendant Drennen based on a violation of Plaintiff Sherman's Eighth Amen dment rights. Defendants' Motion to Continue Trial and Final Pretrial Conference, ECF No. 112 , is denied as to Defendant Drennen, and denied as moot as to the Trumbull County Defendants. Defendant Drennen's Motion to Excuse Personal Ap pearance at Final Pretrial Conference, ECF No. 113 , is denied. Trumbull County Defendants' Motion to Excuse Personal Attendance of Claims Representative at Final Pre-Trial Conference, ECF No. 115 , is denied as moot. The Pretrial Conference and Trial will occur on the dates previously scheduled. Judge Benita Y. Pearson on 11/20/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHELE L. RAFFERTY, et al.,

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Plaintiffs,
v.
TRUMBULL COUNTY, OHIO, et al.,
Defendants.

CASE NO. 4:16CV430

JUDGE BENITA Y. PEARSON

ORDER [RESOLVING ECF NOs. 99,
103, 112, 113, & 115]

Pending before the Court are two motions for summary judgment: (1) a motion from
Defendant Charles Drennen (ECF No. 103), and (2) a motion from Defendants Trumbull County,
Sheriff Thomas Altiere, and Lieutenant Eric Shay (ECF No. 99). Plaintiffs Michele Rafferty and
Katie Sherman have responded. ECF Nos. 105 & 108. Defendants have filed replies. ECF Nos.
110 & 111. For the reasons that follow, the Court grants in part and denies in part Defendant
Drennen’s Motion for Summary Judgment and grants the Trumbull County Defendants’ Motion
for Summary Judgment on Plaintiffs’ Amended Complaint.
I. Background
A. Allegations of Sexual Abuse
Plaintiffs, Michele Rafferty and Katie Sherman, are two former inmates at the Trumbull
County Jail. For a time, Plaintiffs resided in the same pod in the jail, and they allege that
Defendant Charles Drennen, a corrections officer during their time at the Trumbull County Jail,

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"engaged in a pattern of sexual misconduct with female inmates." ECF No. 42 at PageID #: 225.
While the amended complaint contains allegations that Drennen conducted inappropriate strip
searches of Plaintiffs and would himself engage in masturbation (id.), the deposition testimony of
Plaintiffs does not go so far. Instead, both Rafferty and Sherman testified that they never
witnessed Drennen masturbate. ECF No. 102 at PageID #: 736 & ECF No. 101 at PageID #:
648. Additionally, both testified that Drennen never touched them inappropriately. ECF No. 102
at PageID #: 707 & ECF No. 101 at PageID #: 649. Rather, they both testified that while they
were in their pod and Drennen was performing rounds during the midnight shift, Sherman
exposed her breasts on three or four occasions and removed her shorts and masturbated while
covered by a blanket on one or two occasions. ECF No. 101 at PageID #: 611 & ECF No. 102 at
PageID #: 705. Sherman testified that she engaged in these actions because Drennen asked her to
do so. ECF No. 102 at PageID#: 705. Sherman also testified that while Drennen never
threatened her, she never refused to remove her clothing because she found Drennen
intimidating. Id. at PageID #: 716. Rafferty testified that while she never heard Drennen
threaten Sherman, causing her to expose herself under threat of discipline, she heard Drennen ask
Sherman to expose herself or write him notes that would contain flirtatious and sexual content.
ECF No. 101 at PageID #: 652.
Additionally, Rafferty testified that nobody ever ordered her to watch Sherman expose
herself, but the two had bunks right next to each other, so there "wasn't any way not to be a part
of what was going on." Id. Drennen, on the other hand, testified that Sherman exposed her
breasts to him on one occasion, but he chose not to report it, because of the potential for it to put
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him in "a bad light" and jeopardize his chances of receiving an assignment to work outside the
jail 'on the road.' ECF No. 104-1 at PageID #: 777. Drennen also testified that he was aware that
Sherman "liked [him], but [he] never, never gave that back." Id. at 782.
B. Rafferty’s Confrontation with Drennen
Rafferty testified that, after Sherman was released from Trumbull County Jail, she and
another inmate, Tania Cordwell, confronted Drennen about his behavior with Sherman and
requested that he not engage in such behavior with other young girls that came into the jail. ECF
No. 101 at 659-60. Rafferty testified that more inmates in her pod had intended to confront
Drennen with her but, on the night they planned to do so, all other inmates besides Cordwell had
already fallen asleep by the time Drennen had made his way to their pod. Id. Rafferty testified
that, upon confronting Drennen, Drennen threatened her, demanding that she drop the issue or
else he would make the rest of her stay uncomfortable, because he had already faced
investigation for similar issues in the past. Id. at 595-96. Rafferty testified that she took
Drennen's response as a direct threat and that she had concerns about reporting the issue. Id.
Drennen decided to report Raffety's actions. ECF No. 104-1 at PageID #: 780. Drennen
testified that Rafferty and another inmate–he thought it was an inmate named
"Smerdell"–blackmailed him, threatening to expose a purported relationship between Drennen
and Sherman unless he gave them cigarettes, a lighter, and razors. Id. Drennen also testified that
he reported this incident to the acting assistant warden after consulting with two co-workers. Id.
at 781.

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C. Internal Investigation
After learning of the incident, Trumbull County conducted an investigation led by Major
Stewart. Id. at PageID #: 783. The investigation included an interview of Drennen, and Drennen
later testified that he told two lies during that interview: (1) he concealed that he and his wife
were having marital problems related to financial issues and (2) he denied that Sherman had
exposed her breasts to him. Id. Drennen was asked to take a polygraph test after the interview,
but resigned before the polygraph was administered. Id.
Major Stewart also interviewed Sherman. ECF No. 102 at PageID #: 721-22. Sherman
testified that, during that interview, she lied to Major Stewart when she denied the allegations
regarding exposing herself to Drennen at Drennen’s request. Id. at PageID #: 723-24. Sherman
testified that she lied because she did not want to relive the experience and it was awkward to
have the discussion with a man her father's age. Id. at PageID #: 724-25.
When deposed, Rafferty testified that, when Defendant Eric Shay interviewed her as part
of the investigation, she reported Drennen's threat to her as well as Defendant's Drennen's
"inappropriate ways". ECF No. 101 at PageID #: 661-63. Rafferty also testified that the
Trumbull County Jail had a kite system in place to report complaints. ECF No. 101 at PageID #:
531. Kites were three sheet-forms, and once an inmate completed the form, all three sheets
would go to the administration, but the inmate would eventually get a copy. Id. Rafferty
testified that she never used a kite to complain about Drennen, because she was afraid of two
possible outcomes: (1) that the officer from whom she requested the form would refuse to give
her one or (2) that requesting the kite would create backlash. Id. at 532-33. Rafferty further
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testified that officers would sometimes deny inmates a kite because the officer did not want to be
linked to the complaint, as the officer's name would appear on the form. Id. at 533.
Sherman similarly testified that she never filed a complaint against Drennen, though she
did ask Officer Nobbs for a kite form. ECF No. 102 at PageID #: 700. Sherman also testified
that Officer Nobbs told her that she would speak with Sherman about the kite form, but never did
so, so Sherman dropped the issue. Id.
Rafferty testified that after Drennen reported the purported blackmail, she was denied
toiletries, cleaning products, and feminine products from time-to-time. ECF No. 101 at PageID
#: 601-02. She testified that she tried to report these incidents, but none of the corrections
officers from whom she requested a kite gave her one, though she could not recall the names of
which officers she asked or the exact number of officers from whom she requested a kite. Id. at
PageID #: 601-602.
Plaintiffs have brought a 42 U.S.C. § 1983 action, alleging Eighth and Fourth
Amendment violations by Defendant Drennen, a Monell claim against the Trumbull County
Defendants, and various state law claims against the Trumbull County Defendants.
II. STANDARD OF REVIEW
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure of materials on file, and any affidavits show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the
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burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
After the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of material facts in dispute. An opposing party may not
simply rely on its pleadings; rather, it must “produce evidence that results in a conflict of
material fact to be resolved by a jury.” Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.
1995). A fact is “material” only if its resolution will affect the outcome of the lawsuit. In
determining whether a factual issue is “genuine,” the court must evaluate whether the evidence
could persuade a reasonable factfinder that the non-moving party is entitled to a verdict. Id.
To defeat a motion for summary judgment, the non-moving party must “show that there is
doubt as to the material facts and that the record, taken as a whole, does not lead to a judgment
for the movant.” Guarino, 980 F.2d at 403. In reviewing a motion for summary judgment, the
court must view the evidence in the light most favorable to the non-moving party when deciding
whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587–88 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). The
existence of a mere scintilla of evidence in support of the non-moving party’s position ordinarily
is not sufficient to defeat a motion for summary judgment. Klepper v. First Am. Bank, 916 F.2d
337, 342 (6th Cir. 1990).
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III. DISCUSSION
A. Defendant Drennen's Motion for Summary Judgment
In cases brought against public officials in their individual capacity, the general rule is
that “government officials performing discretionary functions are generally shielded 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 qualified immunity analysis has two prongs: (1) whether the facts
that a plaintiff has alleged or shown constitute a violation of a constitutional right; and (2)
whether the right was clearly established at the time of the defendant’s alleged misconduct.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). Clearly established means that “the contours of
the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words,
“the salient question. . . is whether the state of the law. . . gave . . . fair warning that [the] alleged
treatment . . . was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Once a state
official “raise[s] a qualified immunity defense, ‘it is the plaintiff’s burden to prove that the state
officials are not entitled to qualified immunity.’” Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir.
2011) (quoting Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006)).
Plaintiffs have alleged violations of rights protected by the Fourth and Eighth
Amendments. The Court begins by addressing Drennen’s administrative exhaustion argument.

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1. Exhaustion
As a preliminary matter, Defendant Drennen's argument that Plaintiffs did not exhaust
their administrative remedies (ECF No. 103 at PageID #: 756) fails, because the exhaustion
requirement does not apply. Section § 1997e(a) of Title 42 provides "[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted." (emphasis added). Plaintiffs, however,
did not initiate this lawsuit until after their release from prison. Cf. Cox v. Mayer, 332 F.3d 422,
424-25 (6th Cir. 2003) (holding that plaintiff brought case when he was a prisoner even though
the court was deciding motion after prisoner's release, because plaintiff was a prisoner when he
filed the lawsuit, and therefore, the exhaustion requirement applied); see also Doe v. Washington
County, 150 F.3d 920, 924 (8th Cir. 1998) ("Congress therefore fully intended to distinguish
between those who are 'prisoners' when they decide whether to file a complaint and those who
are not."). Therefore, Plaintiffs had no obligation to exhaust administrative remedies.
2. Eighth Amendment
To violate the Eighth Amendment, claims of sexual abuse or harassment must meet a
two-part standard: (1) an objective component that focuses on the severity of the conduct and (2)
a subjective component that focuses on the actor’s intent. Sautter v. Halt, 12-CV-2399, 2015
WL 1915251, at *8 (N.D.Ohio April 25, 2015) (Pearson, J.). To satisfy the objective component,
a plaintiff must show that the violation was “an extreme deprivation,” beyond the routine
discomfort prisoners normally face. Id. Additionally, a plaintiff must show that the prison
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official in question “knew of, and acted in deliberate indifference to, an inmate’s health or
safety.” Id. (citation omitted).
The Court will analyze Sherman and Rafferty’s Eighth Amendment claims individually.
a. Plaintiff Sherman
i. Violation of a Constitutional Right
Sherman claims that Drennen violated her Eighth Amendment rights when he forced her
to expose her breasts to him on three or four occasions and masturbate for his viewing on one or
two occasions. Drennen argues that these actions constitute sexual harassment, and that sexual
harassment without any touching does not violate the Eighth Amendment. ECF No. 103 at
PageID #: 756-58.
Defendant is correct insofar as the Court previously held that “sexual harassment, absent
contact or touching, does not satisfy the objective requirement.” Sauter, 2015 WL 1915251 at
*8. That does not control in this case, however, as this case included touching. Drennan
intimidated Sherman into touching herself in compliance with his requests. That Drennan did
not touch her himself is of no moment, because Sherman testified that she only revealed her
breasts and masturbated at Drennen’s request. A request she, an inmate, felt she could not
refuse.
Previously, the Sixth Circuit held that an inmate that engaged in a consensual sexual
relationship with a prison official could not state an Eighth Amendment claim because the
relationship was consensual. Hall v. Beavin, 202 F.3d 268 (table) (6th Cir. Nov. 8, 1999).
Sherman, however, does not concede that she freely consented to her actions. Instead, she
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testified that, although Drennen never explicitly threatened her, she only complied with his
requests because she felt intimidated by him. ECF No. 102 at PageID #: 716. The fact that
Drennen did not explicitly threaten Sherman does not necessarily mean that Sherman freely gave
consent, because of the power dynamics in prisons. See Wood v. Beauclair, 692 F.3d 1041, 1047
(9th Cir. 2012) (“The power dynamics between prisoners and guards make it difficult to discern
consent from coercion.”); see also Chao v. Ballista, 772 F.Supp.2d 337 (D.Mass. 2011) (“A
guard is a female inmate’s captor ... the men in these circumstances have absolute power over
women. Should she wish to end the relationship–and the termination of coercive relationships is
often fraught even in the outside world–she cannot simply “leave.” ”) (emphasis in original).
Though Drennen argues that this case is similar to Valencia v. Rushing, 11-CV-48, 2011
WL 2621671 (N.D.Ohio Jul. 5, 2011) (Pearson, J.), in which the Court held that the alleged
conduct was isolated or relatively minor, this argument does not persuade. In Valencia, the
plaintiff indicated that he considered two of the three incidents of the officer touching his
buttocks “excusable.” Id. at *3. There is no similar admission in this case. Accordingly, the
foregoing satisfies the objective prong of the Eighth Amendment analysis.
As to the subjective prong, a sufficiently culpable state of mind is all that is required.
Sauter, 2015 WL at 1915251, at *8 (citation omitted). A sufficiently culpable state of mind is
one that is deliberately indifferent to an inmate’s health or safety. Id. (citation omitted). The
Eighth Amendment protects human dignity, and therefore, outlaws conduct that lacks any
penological justification. Wood, 692 F.3d at 1050 (citing Gregg v. Georgia, 428 U.S. 153, 18283 (1976)). An officer’s requests that a female inmate perform tasks for his enjoyment that
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include exposing her breasts and masturbating achieve no penological justification, but rather,
are demands that the inmate shed her human dignity to acquiesce to the officer’s desires.
Because of this, Drennen’s conduct satisfies the objective standard.1
Finally, Drennen argues that Sherman has not suffered an injury due to his alleged
conduct, as no doctor has made such a diagnosis and all mental ailments Sherman has pre-existed
her time in the Trumbull County Jail. ECF No. 103 at PageID #: 757. During her deposition,
however, Sherman testified that posttraumatic stress disorder that she developed as a child has
worsened since her time in prison, manifesting in an increase in night terrors from about once a
month at the time she entered Trumbull County Jail to two or three times a week since her
release from the jail. ECF No. 102 at PageID #: 729-734. As the District of Massachusetts has
recognized, a relationship with a guard may result in retraumatiziation or post-traumatic stress
disorder. Chao, 772 F.Supp.2d at 351. (citation omitted). While facts in the record related to
the injury Sherman purportedly suffered are sparse, they are not nonexistent. Therefore, Sherman
satisfies the injury requirement.2

1

Though Sherman’s exposure of her breasts may not have been enough to survive
summary judgment alone, those actions are relevant as they go to the overall sexual abuse
that she suffered due to Drennen’s control over her, and therefore, remain part of her
Eighth Amendment claim.
2

Drennen argues that the injury requirement comes from 42 U.S.C. § 1997e(e),
which states that “[n]o federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a sexual act (as
defined in Section 2246 of Title 18).” However, much like the administrative exhaustion
provision, 42 U.S.C. § 1997e(a), this provision does not apply. Plaintiffs did not bring
(continued...)
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ii. Clearly established law
In determining whether a right is clearly established, courts must ask if “[T]he contours of
the right [are] sufficiently clear [such] that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Drennan contends that no clearly established law exists to substantiate an Eighth
Amendment violation. ECF No. 110 at PageID #: 866. That is not so. It is clearly established
that sexual abuse is impermissible. See Schwnek v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)
(“[T]he Eighth Amendment right of prisoners to be free from sexual abuse [is] unquestionably
clearly established.”).3 In fact, one of the cases upon which Drennen relies, Sautter, holds that
“[s]exual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and
is simply not part of the penalty that criminal offenders pay for their offenses against society.”
Sautter, 2015 WL 1915251, at *8 (internal quotation omitted). Although Drennen may quibble

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this action when they were prisoners confined in a jail. Thus, the plain language of §
1997e(e) precludes its application in the present case.
3

Drennen attempts to differentiate Schwenk on the grounds that “nothing alleged
by Plaintiffs or found in the record even resembles the atrocities that took place in
Schwenk,” because “Mr. Drennen’s only wrongdoing was his failure to report Plaintiff
Sherman’s misbehavior.” ECF No. 110 at PageID #: 864. This argument fails for two
reasons. First, although there are factual differences between Schwenk and this case,
Schwenk still holds that it is clearly established law that sexual abuse violates an inmate’s
Eighth Amendment rights. Schwenk, 204 F.3d at 1197. Second, Sherman and Rafferty’s
testimony, which Drennen ignores in his explanation of why Schwenk is different, creates
a material issue of fact as to the acts that Sherman performed. Viewing Sherman’s
testimony in the light most favorable, Drennen’s request that Sherman expose herself and
masturbate for his gratification constitute sexual abuse.
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over the characterization of his conduct as sexual abuse, the facts, viewed in a light most
favorable to Plaintiffs, demonstrate that Sherman only masturbated and revealed her breasts due
to Drennen’s control over her. Any reasonable prison official would understand that he has no
authority to command an inmate to engage in sexual acts.
b. Plaintiff Rafferty
Unlike with Sherman, there are no allegations of a sexual nature involving Rafferty. She
admits that she never engaged in any sexual conduct at Drennen’s request. Instead, her
allegations are two-fold: (1) that she was forced to watch Sherman masturbate and expose herself
and (2) that Drennen threatened her when she confronted him about his conduct.
As to Rafferty's first theory, she cannot recover, as she lacks standing. Rafferty
essentially argues that she suffered an injury based on Drennen’s actions toward Sherman, but an
inmate does not have standing to assert a claim based on the violation of another’s rights. See
Holder v. Cuyahoga County Jail, No. 16-CV-2718, 2017 WL 696691, at *2 (N.D.Ohio Feb. 21,
2017) (Nugent, J.) (holding that plaintiff’s allegations regarding general conditions in parts of a
prison without a claim that those conditions personally impacted him failed to establish standing)
(citing Shepard v. Wellman, 313 F.3d 963, 970 (6th Cir. 2003)). While Rafferty contends that
Drennen’s actions toward Sherman have caused her injury, the Eighth Amendment affords her no
right of protection against that, especially when Rafferty has admitted that she was not forced to
watch these interactions. See ECF No. 101 at PageID #: 652.
Rafferty's second theory of recovery also fails. As a general rule, verbal threats are not a
violation of the Eighth Amendment. Miller v. Wertanen, 109 F.App’x. 64 (6th Cir. 2004)
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(holding that verbal threat, among other actions, was not a violation of inmate’s constitutional
rights); see also, Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992) (“Generally, mere
verbal threats made by a state-actor dot not constitute a § 1983 claim.”) (citation omitted).
3. Fourth Amendment
Drennen's argument that Plaintiffs have not established a Fourth Amendment violation is
well-taken. As Drennen points out, Hudson v. Palmer, 468 U.S. 517, 526 (1984), holds that
inmates do not have a Fourth Amendment expectation of privacy in their cell.
Additionally, Plaintiffs did not address the Fourth Amendment in their memorandum in
opposition to Drennen's motion. Thus, Plaintiffs have abandoned that claim. See Hicks v.
Concorde Career Coll., 449 F.App’x. 484, 487 (6th Cir. 2011) (finding that “[t]he district court
properly declined to consider the merits of [plaintiff’s] claim because [plaintiff] failed to address
it in . . . his response to the summary judgment motion”); see also, e.g., Hadi v. State Farm Ins.
Cos., 2:07-CV-0060, 2008 WL 4877766, at *13 (S.D. Ohio Nov. 12, 2008) (finding plaintiff’s
failure to respond with any evidence supporting his negligent infliction of emotional distress
claim “apparently concedes that summary judgment is proper on this count.”)
B. Trumbull County’s Motion for Summary Judgment
1. Municipal Liability
Trumbull County argues that municipal liability is improper. First, it argues that there is
no underlying constitutional violation; however, that argument fails as to Defendant Sherman, as
detailed above. That said, the argument succeeds as to Plaintiff Sherman, as detailed above.
Second, Trumbull County argues that Plaintiffs have failed to show that there was a Trumbull
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County custom or policy that caused the violation. Trumbull County’s second argument is welltaken as to both Plaintiffs.
To sustain a municipal liability claim under Section 1983, a plaintiff must show two
things: (1) the occurrence of a constitutional violation, and (2) that a custom or policy caused the
violation. Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009). The Court has already addressed
the first issue, holding that Sherman’s Eighth Amendment claim survives, though Rafferty’s
fails. Therefore, the following analysis focuses entirely on whether Sherman has met the second
prong of the Spears test.
In Plaintiffs’ response to Trumbull County’s motion for summary judgment, Plaintiffs
rely on Spears, for the proposition that there are at least four theories under which a plaintiff can
prove the existence of an illegal custom or policy, including a custom of tolerance and
acquiescence. ECF No. 108 at PageID #: 853. Immediately following, Plaintiffs argue that
“[v]iewed indulgently to Rafferty and Sherman, Drennen’s statement can be reasonably
construed as evidence that Trumbull tolerated and acquiesced in Drennen’s sexual misconduct
toward female inmates.” Id. That this is Plaintiffs’ argument on the issue reveals that they are
proceeding under a custom of tolerance theory.
To succeed on a custom of tolerance theory, Plaintiffs must put forward evidence that
shows that Trumbull County’s need to act was so obvious that the decision not to act amounted
to a policy of deliberate indifference to Plaintiffs’ constitutional rights. See Stanfield v. City of
Lima, 244 F.Supp.3d 638, 655-56 (N.D.Ohio 2017) (Lioi, J.) (appeal pending) (citing Doe v.
Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996)). Additionally, Plaintiffs must show “that
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there was a pattern of inadequately investigating similar claims.” Id. (citing Burgess v. Fisher,
735 F.3d 462, 478 (6th Cir. 2013)).
The only piece of evidence Plaintiffs offer to support their theory is Rafferty’s testimony
that Drennen told her “he had previously already been looked into a number of times for
improper behavior with female inmates and nothing had come of it.” ECF No. 101 at PageID #:
596. Drennen, however, denied making such a statement, and he testified that no inmates had
ever filed complaints against him, nor had internal affairs ever questioned him prior to Major
Stewart’s investigation regarding Rafferty’s allegations. ECF No. 104-1 at PageID #: 785.
Likewise, in its responses to Plaintiffs’ interrogatories, Trumbull County averred that the only
investigation Drennen faced as a corrections officer was the investigation that resulted from
Rafferty’s allegations. ECF No. 99-2 at PageID #: 508-10. Plaintiffs, therefore, have not shown
a pattern of inadequately investigating claims related to Drennen. Moreover, Plaintiffs have not
offered evidence to support the conclusion that Trumbull County has a policy of overlooking
sexual harassment or abuse generally. In the four other complaints against male corrections
officers alleging improper conduct toward female inmates since January 2007, Trumbull County
imposed discipline or the officer resigned his position. Id. at PageID #: 509-511.4

4

These four incidents involved three different individuals. The first incident,
allegations that an officer was watching female inmates shower, led to a fifteen-day
suspension and last chance agreement. The officer subsequently violated the last chance
agreement, and as a result, Trumbull County fired him. The second incident, an
allegation that a corrections officer obtained an inmate’s phone number and sent text
messages to the inmate, led to a termination that was reversed on arbitration. This same
officer, however, was the perpetrator in the third incident, a complaint that, after an
(continued...)
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2. Remaining Theories of Liability
In Trumbull County's motion, it references other remedial theories besides Section 1983
that it believes Plaintiffs alleged in their amended complaint, including claims under Ohio state
law, such as negligent hiring and negligent infliction of emotional distress. Plaintiffs do not
address any of these arguments in their memorandum in opposition; therefore, they have
abandoned these claims. See Hicks, 449 F.App’x. at 487; Hadi, 2008 WL 4877766, at *13.
IV. SUMMARY
Based on the foregoing, Defendant Drennen’s motion is granted in part and denied in
part. It is granted for all claims, except for Plaintiff Sherman’s Eighth Amendment claim. The
Trumbull County Defendants’ motion is granted. The Court will issue a separate judgment entry.
The only remaining claim in this case is Plaintiff Sherman’s 42 U.S.C. § 1983 claim
against Defendant Drennen based on a violation of Plaintiff Sherman’s Eighth Amendment
rights.
During the pendency of this motion, Defendants have filed various motions related to the
final pretrial conference and trial. First, Defendants have filed a Motion to Continue Trial and
Final Pretrial Conference. ECF No. 112. It is denied as to Defendant Drennen, and denied as
moot as to the Trumbull County Defendants. Second, Defendant Drennen has filed a Motion to

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(...continued)
inmate’s release, the officer used heroin with the former inmate and raped her. The
officer resigned. Finally, Trumbull County terminated a corrections officer who received
oral sex from an inmate, and the officer faced criminal prosecution, pleading guilty to
obstructing official business and public indecency. ECF No. 99-2 at PageID#: 509-11.
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(4:16CV430)
Excuse Personal Appearance at Final Pretrial Conference. ECF No. 113. That motion is denied.
Finally, the Trumbull County Defendants have filed a Motion to Excuse Personal Attendance of
Claims Representative at Final Pre-Trial Conference. ECF No. 115. The motion is denied as
moot.
The pre-trial conference and trial will occur on the dates previously scheduled.

IT IS SO ORDERED.

November 20, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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