Phelps v. Tuscarawas County, Ohio/Tuscarawas County Board of Commissioners et al

Filing 63

Memorandum Opinion: For all of the foregoing reasons, the motions for summary judgment of Everett (Doc. No. 46 ) and the Tuscarawas County defendants (Doc. No. 47 ) are granted. Judge Sara Lioi on 5/16/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

THOMAS PHELPS,
PLAINTIFF,
vs.
TUSCARAWAS COUNTY,
OHIO/TUSCARAWAS COUNTY
BOARD OF COMMISSIONERS, et al.,
DEFENDANTS.

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CASE NO. 5:16-cv-1936
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court are two motions for summary judgment. The first is the motion of
defendant Jeremy Everett (“Everett”). (Doc. No 46. [“Everett Mot.”].) Plaintiff Thomas Phelps
(“Phelps”) opposed the motion (Doc. No. 54 [“Opp’n Everett Mot.”]), and Everett filed a reply
(Doc. No. 55 [“Reply Everett Mot.”]). The second is the motion of defendants Tuscarawas
County (Tuscarawas County Commissioners) (“Tuscarawas County”), Sheriff Walter Wilson
(“Wilson”), and Officer Vonda Hamilton (“Hamilton”) (collectively “Tuscarawas County
defendants”). (Doc. No. 47 [“Tusc. Cty. Mot.”].) Phelps opposed the motion (Doc. No. 53
[“Opp’n Tusc. Cty. Mot.”]), and the Tuscarawas County defendants filed a reply (Doc. No. 56
[“Reply Tusc. Cty. Mot.”]).
For the reasons that follow, defendants’ motions are granted.

I. BACKGROUND
Many of the background facts of this case are not in dispute. Wilson was the Tuscarawas
County Sheriff at the time of the events at issue,1 and Everett was the administrator of the
Tuscarawas County Jail.2 (Doc. No. 46-1 (Affidavit of Jeremy Everett [“Everett Aff.”]) ¶ 1.) As
administrator, Everett directed the day-to-day operations of the jail, including responding to
emergency situations. (Id.) Hamilton was an employee of the Tuscarawas County Sheriff’s
Department at all relevant times. (Doc. No. 47-4 (Deposition of Vonda Hamilton [“Hamilton
Dep.”]) at 316 (5).) The specific events at issue in this case occurred on August 19, 2014, but
defendants’ interactions with Phelps prior to that date are relevant.
June 2014 – August 18, 2014
In the summer of 2014, Phelps was incarcerated at the jail as a pretrial detainee because
of domestic violence allegations. (See Doc. No. 61 (Deposition of Thomas Phelps [“Phelps
Dep.”]) at 896; Doc. No. 54-1 at 485; Doc. No. 60 (Deposition of Nicole Peters3 [“Peters Dep.”])
at 751.) The parties do not dispute that, at the jail on June 20, 2014, Phelps deliberately banged
his head so hard that he cut it and was transported to Union Hospital to repair the cut. Nor do
they dispute that, while being transported back to the jail from the hospital, Phelps banged his
head against the window of the cruiser so hard that he reopened the repaired cut and broke the
window. Phelps was returned to the hospital and thereafter admitted to Heartland Behavioral

Wilson retired as sheriff on January 1, 2017. (Doc. No. 47-3 (Deposition of Sheriff Walter Wilson [“Wilson
Dep.”]) at 295 (5) (All page number references are to page number identification numbers generated by the Court’s
electronic filing system. Where deposition transcripts are filed with multiple transcript pages on a single electronic
filing page, the transcript page number appears in parentheses following the page identification number).)
1

2

When Wilson retired, the new sheriff discharged Everett as administrator and appointed a different jail
administrator. (Everett Aff. ¶ 2.)
3

Peters was a licensed practical nurse at the jail in the summer of 2014.
2

Health Care Center (“Heartland”). (Opp’n Everett Mot. at 464; Everett Mot. at 234; Doc. No. 541 at 484; Doc. No. 54-5 at 581.) A nursing note from that day states that Phelps “[w]ill probably
be placed on suicide watch here unless we can get Rx’s that are current for inmate.’” (Opp’n
Everett Mot. at 464-65, citing exhibits 1 and 54; Doc. No. 54-1 at 490.)
On July 14, 2014, Phelps harmed himself again at the jail by banging his head, and was
transported to the hospital and then to Heartland. (See Phelps Dep. at 940; Opp’n Everett Mot. at
465.) On July 17, 2014, Phelps was discharged from Heartland and transported back to the jail.
(Everett Aff. ¶ 3; Opp’n Everett Mot. at 465.) When Phelps was discharged, he reported as not
being suicidal and ready to return to jail. Heartland found him to be stabilized and ready for
discharge with “regular checks” and prescribed medication. (Doc. No. 55-1 at 592.)
Everett understood from Heartland that Phelps was self-injurious because of problems
with his girlfriend and because he was incarcerated, not because he wanted to kill himself.
(Everett Aff. ¶¶ 3, 6, 7; Doc. No. 55-1 at 592-93.) While Heartland did not find Phelps to be
suicidal, he was diagnosed with a number of mental disorders.5 (See Doc. No. 54-2 at 534;

The Court notes that Phelps’ oppositions to the motions generally cite to voluminous exhibits in their entirety. The
Court requires the use of pinpoint citations when citing the record. (Doc. No. 3 at 19 (“All facts presented to the
Court in any brief or memorandum setting forth a party’s position with respect to a motion must be supported by
pinpoint citations to the case record. For example, it is not sufficient to say: ‘See Green Affidavit’ or ‘See Williams
Deposition.’”).) The Court is not required to search the record to determine if it is “bereft of a genuine issue of
material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1480 (6th Cir. 1989) (footnote omitted)); Fed. R. Civ.
P. 56(c)(3). It is Phelps’ obligation to point to specific facts supported by the record that demonstrate a genuine issue
of fact for trial. See Card-Monroe Corp. v. Tuftco Corp., 270 F. Supp. 3d 967, 986 (E.D. Tenn. 2017).
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In addition to those disorders, Phelps contends that he was diagnosed with other mental health issues in the past,
including bipolar and bipolar schizoaffective with suicidal tendencies. (Opp’n Everett Mot. at 464, citing Phelps’
deposition and exhibits.) While Heartland found that Phelps was not suicidal at the time of its assessment in July
2014, there is evidence in the record that Phelps had suicidal tendencies or attempted suicide in the past. (See, e.g.,
Doc. No. 54-2 at 538 (“He has a history of cutting himself and requiring sutures. He made a suicide attempt via
cutting his throat in the past, also.”); Phelps Dep. at 878, 885.) Phelps had a history of banging his head and cutting
himself for the past 10 or 20 years. (See id. at 878, 884-85, 941-42.) There is also some evidence in the record that
Phelps smashed a TV while at the jail in 2005, and cut himself. (See Doc. No. 59 (Deposition of James Milburn
[“Milburn Dep.”]) at 675 (15); Phelps Dep. at 941-42.)
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Phelps Dep. at 946-47.)) Phelps has not provided any expert evidence disputing Heartland’s
assessment that Phelps was not suicidal when he was discharged from Heartland on July 17,
2014.
Everett considered Heartland’s assessment of Phelps’ mental health and decided not to
house Phelps in the general population or place him on suicide watch. Rather, Everett determined
to house Phelps in the classification unit where he could be observed more closely than the
general population and maximum security area because there is direct visual observation by the
booking desk and by officers on regular rounds. (Everett Aff. ¶¶ 4-7; Hamilton Dep. at 318 (15));
Milburn Dep. at 682 (45) (The classification unit is “pretty much a place where you go and they
can view you, make sure that you ain’t going to hurt yourself.”).)
After Phelps returned to the jail on July 17, 2014, the staff administered his daily
medications, which were adjusted as necessary in consultation with the doctor. For example,
Phelps visited the jail clinic on July 24, 2014 stating that he felt depressed, and his medication
was adjusted. (See Doc. No. 46-2 (Affidavit of Nicole Peters [“Peters Aff.”]) ¶¶ 5-7; see also
Everett Mot. at 235, 237 (dosage of Wellbutrin increased); Peters Dep. at 779.) During the time
period from July 17, 2014 through August 18, 2014, Phelps received both medical and mental
health care, was apparently doing well overall, and did not convey to the jail staff any thoughts
of injuring himself or of suicidal ideation. (Peters Aff. ¶¶ 3-8; Everett Aff. ¶¶ 8-12.) Phelps does
not contend that, during this time period, he conveyed to defendants or jail staff any thoughts of
harming or killing himself. Indeed, Phelps described his mood as fair and that he was coping in
the days leading up to August 19, 2014. (Phelps Dep. at 899-900.)

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August 19, 2014
Everett visited with Phelps on August 18, 2014 concerning Phelps’ complaints of pain
possibly related to a hernia operation. Everett found Phelps to be lucid, and Phelps provided
Everett with his medical history and signed an authorization so that Everett could obtain his
medical records. Phelps made no mention to Everett of depression or thoughts of harming
himself. (Everett Aff. ¶¶ 8-12.) Phelps does not dispute Everett’s impression of Phelps’ mental
state on August 18, 2014, or dispute that he did not communicate any thoughts of self-harm to
Everett during that visit.
On August 19, 2014, Phelps was housed in the jail’s classification unit where he had been
since July 17, 2014. Hamilton was on duty at the booking desk. An intercom system connects the
classification unit with booking. (Hamilton Dep. at 318 (16).)
Phelps maintains that, on August 19, 2014, he pressed the intercom button and made
multiple requests to Hamilton over the intercom to “see mental health.” (Phelps Dep. at 901-02,
909, 913-14.) According to Phelps, Hamilton told him to sit down and deal with it. (Id. at 910.)
Phelps also contends that he spoke with the individual who distributed morning medications
about seeing mental health, and was told to send a kite, which Phelps admittedly did not do. (Id.
at 911-12.) Two individuals in the classification unit with Phelps that morning, Milburn6 and
Richard Jamerson, also maintain that Phelps requested to see mental health using the intercom,
but Phelps did not say he wanted to kill himself (Milburn Dep. at 675 (15-17); Doc No. 58

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Everett disputes whether Milburn was in the classification unit on August 19, 2014. (Everett Mot. at 241; see
Everett Aff. ¶ 21.)
5

(Deposition of Richard Jamerson [“Jamerson Dep.”]) at 629-31) or hurt himself. (Jamerson Dep.
at 631 (28)). According to Milburn, when Everett walked by the classification unit, Phelps told
Everett that he needed to talk with someone before he did “something stupid” but Everett told
him it was “not my problem” and went to the booking area. (Milburn Dep. at 674 (11).)
Hamilton states that she was not aware that anyone in the classification unit rang the
intercom on August 19, and did not know that there was an issue with Phelps until another
inmate in that unit began pounding on the windows.7 At that time, Hamilton was at the booking
counter talking to a probation officer from municipal court. When Hamilton heard the pounding,
she walked over to the booking door and could see that Phelps had taken the TV off the wall,
broken it, and had cut his arm with a piece of glass. Prior to hearing the pounding, Hamilton was
not aware, and did not hear Phelps say, that he needed to talk with someone or that he was losing
control. (Hamilton Dep. at 318-19 (16-21).) Jamerson estimates that about 10-15 minutes elapsed
from the time Phelps first pressed the intercom button and when he removed the TV from the
wall. (Jamerson Dep. at 630 (24-25).) Phelps is uncertain about the time frame of the events of
August 19. (See Phelps Dep. at 912-13.)
As it must on summary judgment, the Court will view the evidence on this disputed issue
in favor of Phelps. But, even assuming that Phelps requested to see mental health that morning
and Hamilton heard his request, Phelps concedes that he “didn’t say [he] was going to kill
[him]self.” (Id. at 949-50 (The [o]nly time I said that is when Everett escalated the situation
where I told him I was going to cut my head off and he stated back . . . do what you gotta do. Do

Phelps was standing by the TV and Jamerson realized “the shit was about to hit the fan” and began beating on the
window for help. (Jamerson Dep. at 629-30 (21-23).)
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what you gotta do, you’re nothing but paperwork.”); see also Milburn Dep. at 675 (17) (“He
didn’t say that he was going to kill himself. He just said he wanted to talk to somebody[.]”).)
There is no dispute that an emergency presented itself when Phelps removed the TV from
the wall and began cutting himself. When Hamilton saw that Phelps had cut his arm, she called
for help. (Hamilton Dep. at 319 (20).) Jail personnel began arriving on the scene, and Peters was
one of the first to arrive. When she arrived, Phelps was holding a piece of glass in his hand and
had already cut his arm. (Peters Aff. ¶¶ 1, 9.) Peters tried to calm Phelps by talking with him
through the open food pass chute in the cell door and asked him to put the glass down. (Peters
Dep. at 724-28.) Peters believed Phelps to be suicidal at that time based on his conduct. (Id. at
757-58.) When Everett arrived, he kicked the food chute closed to protect Peters from Phelps
cutting Peters with glass by reaching through the open chute. (Everett Aff. at ¶¶ 17-18.) While
Everett’s action agitated Phelps, Phelps has advanced no evidence raising a genuine dispute of
fact that Everett closed the food chute to protect Peters.
The parties dispute whether words were exchanged between Phelps and Everett at this
time. According to Phelps, when Everett “escalated” the situation by kicking the chute closed
Phelps told Everett “I’m going to cut my head off and [Everett] says, do what you gotta do.”
(Phelps Dep. at 919.) Jamerson testified that at some point Everett asked Phelps what he was
trying to do and Phelps replied that he was trying to kill himself, to which Everett responded
“then do what you got to do[,]” and Milburn provided similar testimony.8 (Jamerson Dep. at 630
(23, 24); see Milburn Dep. at 674-75 (11-13).) Everett denies that he made any such statements.

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But Milburn also testified that Everett instructed Phelps to stop cutting himself. (Milburn Dep. at 683 (48) (Everett
was yelling at Phelps to stop or they were going to make him stop.).)
7

(Everett Aff. ¶ 24.) To the extent that this dispute is material, the Court concludes that a
reasonable juror could find that Everett made the statements at issue.
Phelps does not dispute that, after Everett kicked the food chute closed, which agitated
Phelps, Peters kept talking to Phelps and succeeded in quickly calming him down again. (Peters
Aff. ¶¶ 10-11.) The other inmates in the classification unit were ordered to lock down, and
Everett ordered jail personnel to don their personal protective equipment. There is no dispute that
Phelps was ordered to lay down on the floor and that he voluntarily complied. Phelps was
handcuffed and removed from the classification unit. (Everett Aff. ¶¶ 19, 21-22; Phelps Dep. at
932-33; Peters Aff. ¶ 12.)
Phelps claims that he was maced and “dragged” to a holding cell, did not receive
treatment, and was held down on the bed until a decision was made as to whether he would be
transported to the hospital by jail personnel or by ambulance. (Phelps Dep. at 920-21; 932-34.)
But the jail video provided by Everett as Attachment 3 to his reply in support of the motion (and
Everett’s explanatory supplemental affidavit) plainly shows Phelps calmly walking (not being
dragged) from the classification unit and then seated on a bed and provided with medical
attention. (Doc. No. 57; Doc. No. 55-2 (Supplemental Affidavit of Everett [“Supp. Everett
Aff.”]) ¶¶ 9-16.) Thus, the Court does not credit Phelps’ testimony in this regard.9
Phelps’ wounds were not life-threatening, and they were cleaned and bandaged at the jail
before Phelps was transported to the hospital. (See Peters Aff. ¶ 14.) Phelps has provided no
evidence that the cuts he inflicted upon himself were life threatening, and his injuries do not

Coble v. City of White House, Tenn., 634 F.3d 865, 869 (6th Cir. 2011) (When a non-moving party’s version of
events are blatantly contradicted by objective evidence in the record, it fails to create a genuine issue of fact for
trial.) (citations omitted).
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appear so on the video of those events. (See Doc. No. 57.) After Phelps was secured and
receiving medical attention, but before he was transported to the hospital, he told Peters that he
wanted to die. (Peters Dep. at 757.) After medical treatment, Phelps was again taken to
Heartland. Heartland records from August 20, 2014 describe Phelps’ chief complaint as “I broke
the TV, took the glass and cut my neck and hand. I want to kill myself.” (Doc. No. 54-2 at 541.)
Phelps’ complaint and defendants’ motions
For his complaint, Phelps alleges that he was known by defendants to be self-injurious
from the time he entered the jail in June 2014 through the events of August 19, 2014, and that
defendants were deliberately indifferent and failed to provide him with adequate medical care,
causing him injury. Phelps also alleges that defendants failed to have adequate policies,
procedures, and training in place to protect Phelps from a substantial risk of harm. Phelps claims
that, pursuant to 42 U.S.C. § 1983, defendants’ deliberate indifference and failures violated his
rights under the Eighth and Fourteenth Amendments to the United States Constitution to
adequate medical care and to be free from cruel and unusual punishment. Everett and Hamilton
are sued in their individual and official capacities, and Wilson is sued in his official capacity as
Tuscarawas County Sheriff.
On summary judgment, Everett argues that he is entitled to qualified immunity with
respect to Phelps’ § 1983 claim that Everett violated his constitutional rights under the Eighth
and Fourteenth Amendments. Tuscarawas County, Wilson, and Hamilton also move for
summary judgment on Phelps’ § 1983 claim, incorporate the evidence and arguments set forth in
Everett’s motion, and argue that Phelps’ complaint should be dismissed for the additional reason
that Phelps fails to state a claim. (Tusc. Cty. Mot. at 267-71.) Because the Court concludes that
9

the defendants are entitled to summary judgment, the Court will not address defendants’
arguments that the complaint fails to state a claim.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate where “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). A fact is
material if its resolution affects the outcome of the lawsuit under the governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If a reasonable jury could return a verdict for the nonmoving party, then summary
judgment is not appropriate. Id.
The moving party must provide evidence to the court that demonstrates the absence of a
genuine dispute as to any material fact. Once the moving party meets this initial burden, the
opposing party must come forward with specific evidence showing that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986);
Anderson, 477 U.S. at 250. It is the nonmoving party’s duty to point out specific facts in the
record that create a genuine issue of material fact; the trial court does not have a duty to search
the record “to establish that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at
1479-80 (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)); Fulson v.
City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992) (citation omitted).
The nonmoving party may oppose a summary judgment motion “by any of the kinds of
evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]” Celotex, 477
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U.S. at 324. The Court must view all facts and evidence, and inferences that may be reasonably
drawn therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). General averments or conclusory allegations of an
affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
“Summary judgment requires that a plaintiff present more than a scintilla of evidence to
demonstrate each element of a prima facie case.” Garza v. Norfolk S. Ry. Co., 536 F. App’x. 517,
519 (6th Cir. 2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir.
2007)). “‘The mere existence of a scintilla of evidence in support of the [nonmoving party’s]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [nonmoving party].’” Street, 886 F.2d at 1477 (quoting Anderson, 477 U.S. at 252).
The district court’s review on summary judgment is a threshold inquiry to determine
whether there is the need for a trial due to genuine factual issues that must be resolved by a
finder of fact because those issues may reasonably be resolved in favor of either party. Anderson,
477 U.S. at 250. That is, the Court must determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52; see also Wexler v. White’s Fine Furniture, Inc., 317
F.3d 564, 578 (6th Cir. 2003).
[Summary judgment is required] against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial. In such a situation,
there can be no genuine issue as to any material fact, since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial. The moving party is entitled to judgment as a
matter of law because the nonmoving party has failed to make a sufficient
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showing of an essential element of her case with respect to which she has the
burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).
B. 42 U.S.C § 1983
Phelps’ claims against Everett, Hamilton, Wilson, and Tuscarawas County are brought
pursuant to 42 U.S.C. § 1983. “To establish a claim under 42 U.S.C. § 1983, a plaintiff must
‘identify a right secured by the United States Constitution and the deprivation of that right by a
person acting under color of state law.” Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th
Cir. 2001) (quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992)); Colen v.
Corizon Med. Servs., No. 14-CV-12948, 2018 WL 1477664, at *10 (E.D. Mich. Mar. 27, 2018)
(same) (citing West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)).
Defendants in this case are state actors for the purpose of § 1983. For his § 1983 claim,
Phelps alleges that defendants violated his constitutional rights as a pretrial detainee to adequate
medical care. The Eighth Amendment, which provides an inmate the right to be free from cruel
and unusual punishment, does not apply to pretrial detainees. But, under the Fourteenth
Amendment’s due process clause, pretrial detainees have a right to adequate medical care that is
analogous to the Eighth Amendment rights of prisoners. Watkins, 273 F.3d at 685-86 (citing City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983));
Powers v. Cty. of Lorain, 259 F. App’x 818, 821 (6th Cir. 2008) (“Pre-trial detainees have rights
to adequate medical treatment analogous to those of prisoners; however, these rights stem from
the Due Process clause of the Fourteenth Amendment instead of the Eighth Amendment.”)
(citing City of Revere, 463 U.S. at 244).

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C. Qualified Immunity
Everett and Hamilton, who are sued in their individual capacities, argue on summary
judgment that Phelps’ claims against them should be dismissed because they are entitled to
qualified immunity. The initial burden is on the defendants to plead the defense of qualified
immunity, which they have done in this case. (Doc. No. 9 ¶ 15.) Phelps then bears the burden of
showing that Everett and Hamilton are not entitled to qualified immunity. Sheets v. Mullins, 287
F.3d 581, 586 (6th Cir. 2005). To survive summary judgment, Phelps must advance evidence of
a genuine issue of material fact on the issue of whether Everett and Hamilton are entitled to
qualified immunity. Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005)
(citing Sheets, 287 F.3d at 586 (citing Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th
Cir. 1992))).
“In order to prevail in a § 1983 action for civil damages from a government official
performing discretionary functions, the defense of qualified immunity that [established case law
has] recognized requires that the official be shown to have violated ‘clearly established statutory
or constitutional rights of which a reasonable person would have known.’”10 Conn v. Gabbert,
526 U.S. 286, 290, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)); Solomon v. Auburn Hills Police Dep’t,
389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct.
3034, 97 L. Ed. 2d 523 (1987)). The issue is not the subjective good or bad faith of the public
official, but the “objective legal reasonableness” of the official’s action in light of clearly
established law at the time. Creighton, 483 U.S. at 639 (citation omitted). “If officers of

13

reasonable competence could disagree on the issue, then qualified immunity should be
recognized.” Stevens-Rucker v. City of Columbus, 242 F. Supp. 3d 608, 620 (S.D. Ohio 2017)
(citing Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986))).
“In order to determine if an officer’s actions are entitled to qualified immunity, the Court
employs a two part test: ‘(1) whether the facts, when taken in the light most favorable to the
party asserting the injury, show the officer’s conduct violated a constitutional right; and (2)
whether the right violated was clearly established such that a reasonable official would
understand that what he is doing violates that right.’” Stevens-Rucker, 242 F. Supp. 3d at 620
(quoting Mullins, 805 F.3d at 765); Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 602
(6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001)). The two prongs of this test may be analyzed in either order. Chappell v. City of
Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 236,
129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)).
D. Everett and Hamilton are Entitled to Qualified Immunity on Phelps’ § 1983 claim
Pretrial detainees have a constitutional right to medical care even when their injuries are
self-inflicted. Powers, 259 F. App’x at 821 (citation omitted). A cause of action under § 1983 for
failure to provide adequate medical care requires a showing that “the defendants acted with
‘deliberate indifference to the serious medical needs’ of the pre-trial detainee.” Estate of Carter
v. City of Detroit, 408 F.3d 305, 311 (6th Cir. 2005) (internal quotation marks omitted) (citing

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The parties do not dispute that Everett and Hamilton were exercising discretionary functions at all relevant times
for the purpose of qualified immunity analysis.
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Watkins, 273 F.3d at 686 (quoting Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976))).
“There are two parts to the claim, one objective, one subjective. For the objective
component, the detainee must demonstrate the existence of a sufficiently serious medical need.”
Estate of Carter, 408 F.3d at 311 (internal quotation marks omitted) (quoting Blackmore v.
Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825,
834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994))). “For the subjective component, the detainee
must demonstrate that the defendant possessed a sufficiently culpable state of mind in denying
medical care.”11 Id. (internal quotation marks and citation omitted).
1. Objective component
The objective component of the adequate medical care test is satisfied “[w]here the
seriousness of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore,
390 F.3d at 899. In addition to obviousness, “‘a medical need is objectively serious if it is one
that has been diagnosed by a physician as mandating treatment[.]’” Richmond, 885 F.3d at 938
(internal quotation marks omitted) (quoting Blackmore, 390 F.3d at 897 (further citation
omitted)).
Phelps has an extensive history of brushes with the law, incarceration at the jail, various
psychiatric episodes, and self-harm of which defendants were aware. It is undisputed that, during
the time period from June 2014 until July 14, 2014, Phelps engaged in self-harm that was so
serious that both medical care (at a hospital) and mental health treatment (at Heartland) were

The Sixth Circuit has not yet determined whether Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 192
L. Ed. 2d 416 (2015), abrogates the subjective intent requirement of a Fourteenth Amendment deliberate
indifference claim. See Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018).
11

15

required, and jail personnel provided follow-up care and medication required by those
treatments. Berkshire v. Dahl, No. 12-12038, 2014 WL 5847614, at *6 (E.D. Mich. Nov. 12,
2014) (significant history of psychiatric intervention and self-harm satisfies the objective prong
of plaintiff’s deliberate indifference claim).
While Phelps had a history of self-harm and psychiatric intervention, there is no dispute
that, during the month preceding August 19, Phelps was receiving his medication and was seen
at the jail clinic for both medical and mental health care, and exhibited no episodes of self-harm
or suicidal ideation. On August 19, while Phelps claims that he told Everett and Hamilton that he
wanted to talk with mental health, he admits that he did not tell them that he wanted to kill
himself, and did not plan to (or say) that he was going to hurt himself. (Phelps Dep. at 924 (“It
was just I reacted and no thought of doing it or thinking, okay, I should do this. It’s just a
reaction that I just reacted with no thought.”).
But when Phelps removed the TV from the wall in the classification unit and began
cutting himself, his need for medical care was apparent. Peters considered this conduct suicidal
and Phelps said he was going to cut his head off. “The Sixth Circuit has long recognized that
psychological needs manifesting themselves in suicidal tendencies are serious medical needs[.]”
Linden v. Washtenaw Cty., 167 F. App’x 410, 416 (6th Cir. 2006) (internal quotation marks and
citations omitted).
Drawing all inferences in Phelps’ favor, the Court concludes that a reasonable juror could
find that Phelps has satisfied the objective prong of his § 1983 deliberate indifference claim.

16

2. Subjective component
In order to establish the subjective component, Phelps must show that Everett and
Hamilton “subjectively perceived facts from which to infer substantial risk to the [pretrial
detainee], that [they] did in fact draw the inference, and that [they] then disregarded that risk.’”
Shough v. Mgmt. &Training Corp., No. 3:16 CV 53, 2018 WL 295576, at *8 (N.D. Ohio Jan. 3,
2018) (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)).
Deliberate indifference standard
“This standard requires that the defendant’s mens rea be higher than negligence but lower
than purposeful or knowing infliction of harm.” Linden, 167 F. App’x at 416 (citations omitted);
Shough, 2018 WL 295576, at *8 (citing Farmer, 511 U.S. at 860). “Rather, ‘obduracy and
wantonness’ are required to make a showing of deliberate indifference.” Richmond, 885 F.3d at
939 (quoting Boretti v. Wiscomb, 930 F.2d 1150, 1153 (6th Cir. 1991)).
But “‘an official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under [established case law] be condemned as
the infliction of punishment.’” Richmond, 885 F.3d at 939 (quoting Farmer, 511 U.S. at 838). “If
an officer fails to act in the face of an obvious risk of which he should have known but did not,
the officer has not violated the Eighth or Fourteenth Amendments.” Watkins, 273 F.3d at 686
(citing Farmer, 511 U.S. at 837-38). In order to prevail on his § 1983 deliberate indifference
claim, Phelps must show that he faced a sufficiently serious risk to his health and safety and that

17

Everett and Hamilton acted with deliberate indifference to his health and safety.12 Mingus v.
Butler, 591 F.3d 474, 479-80 (6th Cir. 2010) (citing Farmer, 511 U.S. at 834).
Suicide
While psychological needs manifesting themselves in suicidal tendencies are serious
medical needs, there is no “generalized right of a prisoner to be protected against committing
suicide.” Coffey v. Hamblen Cty., No. 2:15-CV-256, 2016 WL 7638454, at *5 (E.D. Tenn. Sept.
21, 2016) (citing Rich, 955 F.2d at 1096-97). Moreover, “[s]uicide is a difficult event to predict
and prevent and often occurs without warning.” Gray v. City of Detroit, 399 F.3d 612, 616 (6th
Cir. 2005). Thus, the correct inquiry concerning § 1983 liability with respect to suicide is
“‘whether the decedent showed a strong likelihood that he would attempt to take his own life in
such a manner that failure [by a defendant] to take adequate precautions amounted to deliberate
indifference to the decedent’s serious medical needs.’” Coffey, 2016 WL 7638454, at *5 (quoting
Gray, 399 F.3d at 616 (quoting Barber v. City of Salem, 953 F.2d 232, 239-40 (6th Cir. 1992))
(further citations omitted)); Linden, 167 F. App’x at 416 (same) (quoting among other authority
Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000) (“[A] prison
official must be cognizant of the significant likelihood that an inmate may imminently seek to
take his own life and must fail to take reasonable steps to prevent the inmate from performing
this act.”)); Nallani v. Wayne Cty., 665 F. App’x 498, 509 (6th Cir. 2016) (same) (citing Barber,
953 F.2d at 239-40). “Thus, a plaintiff must provide evidence that a strong likelihood existed that
the decedent would attempt to take his own life, from which a state official could infer a

The same standard applies to a pretrial detainee’s claim concerning conditions of confinement. See Koch v. Cty. of
Franklin, Ohio, No. 2:08-CV-1127, 2010 WL 2386352, at *12 (S.D. Ohio June 10, 2010) (citations omitted).
12

18

substantial risk of suicide; that the official in fact drew the inference; and that the official
disregarded the risk.” Russell v. Davis, 522 F. App’x 314, 317 (6th Cir. 2013) (citing Barber,
953 F.2d at 239-40).
Everett
Everett contends that he is entitled to summary judgment on the subjective component of
Phelps’ deliberate indifference claim based on the undisputed facts that: (1) Heartland
determined Phelps was not suicidal when he was discharged from Heartland to the jail on July
17, 2014; (2) Everett housed Phelps in the classification unit because that unit was near the
booking desk and Phelps could be more closely observed; and (3) the jail administered Phelps’
medications and provided medical and mental health care, and Phelps expressed no thoughts of
self-harm or suicide from July 17 through August 18, on which date Everett personally visited
Phelps, who described himself as “coping” and did not report any thoughts of suicide or selfharm.
Everett’s knowledge that Phelps had engaged in self-harm in the past is insufficient, on
its own, to establish that Everett knew or subjectively perceived that Phelps was at substantial
risk of suicide on August 19, 2014. Perez v. Oakland Cty., 466 F.3d 416, 434–35 (6th Cir. 2006)
(“The fact that [defendant] knew Perez was or might be suicidal at earlier times simply does not
support the inference that [defendant] knew that Perez posed a risk of suicide at the later time,
when Perez appeared and claimed to be in a much-improved state of mind.”) (emphasis in
original); see also Ellis v. Washington Cty., Tenn., 80 F. Supp. 2d 791, 801 (E.D. Tenn. 1998)
(defendant entitled to qualified immunity where the most that can be said is that defendant knew
that deceased was suicidal in the recent past). Moreover, more than a month had passed without
19

Phelps harming himself at the jail or expressing thoughts of self-harm or suicide. Jerauld ex rel.
Robinson v. Carl, 405 F. App’x 970, 978 (6th Cir. 2010); Soles v. Ingham Cty., 148 F. App’x
418, 419-20 (6th Cir. 2005) (No reasonable juror could find that defendant was subjectively
aware that decedent would be at substantial risk for suicide where deceased had not expressed
suicidal thoughts for two weeks.). Nor was there a triggering event on that day that may have
alerted Everett there was a substantial likelihood Phelps would harm himself. (Phelps Dep. at
900-01 (Phelps’ request to see mental health resulted from the everyday stress of being
incarcerated—not by a triggering event.).)
In opposition to the motion, Phelps contends that the focus of the deliberate indifference
analysis should be solely on the events of, and his medical condition on, August 19, not the
month prior.13 (Opp’n Everett Mot. at 474.) Phelps argues that, on that day, he repeatedly
requested to talk with mental health and those requests were sufficient for Everett to subjectively
perceive that Phelps was at a substantial risk of harming himself and, by ignoring those requests,
Everett deliberately disregarded that risk.
Even assuming that Everett was aware of his requests, there is no dispute that Phelps did
not tell anyone that he wanted to hurt himself. (Phelps Dep. at 926; Jamerson Dep. at 63114
(28).) Indeed, Phelps testified that the only time he said he was going to kill himself was after he
smashed the TV.15 (Phelps Dep. at 949, 951-53.) Given Heartland’s assessment on July 17,

13

While Phelps contends that the state of his mental during the month before August 19 should not be considered,
he also argues that Everett was aware of his long history of mental health issues and self-harm, and that history
should have informed Everett’s subjective perception of the events of that day. (Opp’n Everett Mot. at 473.)
“Q. Well . . . was [Phelps] saying that he was going to hurt himself. A. No, I don’t remember that. I don’t think he
did.” (Jamerson Dep. at 631 (27).)
14

15

Phelps also told Peters that he wanted to die after he had been removed from the classification unit and was
receiving medical treatment at the jail before being transported to the hospital. (Peters Dep. at 756.)
20

Phelps’ stable condition for more than a month, Everett’s assessment of Phelps on August 18,
Phelps’ admission that he did not tell anyone that he wanted to harm himself the morning of
August 19, and the absence of any triggering event, no reasonable juror could conclude that
Everett subjectively perceived that there was a strong likelihood that Phelps would engage in
self-harm before he removed the TV from the wall and began cutting himself. Even if it could be
argued that Everett should have subjectively perceived that risk, but did not, his failure to do so
does not constitute deliberate indifference. Richmond, 885 F.3d at 939 (quoting Farmer, 511
U.S. at 838).
Phelps further maintains that Everett was deliberately indifferent to his serious medical
needs when he smashed the TV and cut his arm because, after Everett was called to the scene by
Hamilton: (1) Everett cut off Peters’ efforts to diffuse the situation by kicking the food chute
closed, and (2) encouraged Phelps to kill himself. (Opp’n Everett Mot. at 474-75.) But Phelps
has advanced no evidence that creates a dispute of fact regarding Everett’s stated reason for
kicking the food chute closed—to protect Peters from harm. (Everett Aff. ¶¶ 17, 18; Phelps Dep.
at 927-29.) Nor does Phelps dispute that, after Everett closed the chute, Peters kept talking to
Phelps and quickly calmed him down. (See Peters Aff. ¶ 11.)
Whether Everett and Phelps exchanged words and Everett told Phelps to go ahead and
kill himself, or stated that Phelps may be subject to the use of mace, or a paintball gun or bean
bag gun, is in dispute.16 This dispute, however, does not concern a material fact. A fact is
material for purposes of summary judgment if its resolution affects the outcome of the lawsuit

16

See Milburn Dep. at 674 (12); Peters Dep. at 736; Phelps Dep. at 931; Everett Aff. ¶ 24. While the jail’s video
contains no audio, the video does not show a bean bag gun, or the use of paintballs or mace. (Doc. No. 57; Supp.
Everett Aff. ¶ 14.)
21

under the governing law. Anderson, 477 U.S. at 248. Even if Everett did tell Phelps to go ahead
and kill himself, “[t]he use of harassing or degrading language by a prison official, although
unprofessional and deplorable, does not rise to constitutional dimensions.” Alexander v. Govern,
No. 2:16-CV-66, 2016 WL 2604634, at *5 (W.D. Mich. May 6, 2016), appeal dismissed (Sept.
1, 2016) (defendant telling plaintiff “to go ahead and kill himself because no one cared about
him” fails to state a claim) (collecting cases).
More importantly, regardless of what Everett said, there is no dispute that, after Everett
kicked the food chute closed, he immediately ordered his staff to prepare to extract Phelps, who
was instructed to lay down and did so voluntarily. The team Everett assembled entered the
classification unit and Phelps was handcuffed and removed to a booking cell for treatment at the
jail until he was transported to the hospital. (See Peters Aff. ¶¶ 11, 12; Phelps Dep. at 920, 932;
Everett Aff. ¶¶ 19-22.) The video of these events shows that only minutes passed between the
time Everett kicked the food chute closed and when Phelps was removed from the classification
unit and provided with medical treatment. (See Supp. Everett Aff. ¶¶ 6-12.)
Whether Everett was deliberately indifferent is not determined by what he said, but by
what he did. “Prison officials’ deliberate indifference violates an inmate’s rights ‘[w]hen the
indifference is manifested by . . . prison guards in intentionally denying or delaying access to
medical care’ for a serious medical need.” Phillips v. Roane Cty., Tenn., 534 F.3d 531, 539 (6th
Cir. 2008) (quoting Estelle, 429 U.S. at 104-05). Everett did not deny care to Phelps or delay
access to care. When called to the scene by Hamilton, Everett subjectively perceived that Phelps’
was at substantial risk of harm and, after ensuring Peter’s safety, took prompt steps to secure
Phelps so that he could not further harm himself, and then provided him with medical
22

treatment.17 Based on Everett’s actions, no reasonable juror could find that Everett was
deliberately indifferent to Phelps’ serious medical needs.
Hamilton
Phelps and Hamilton dispute whether the intercom button in the classification unit was
pressed by Phelps, or anyone else, to communicate with Hamilton at the booking desk on August
19. (Hamilton Dep. at 319 (20-21); Phelps Dep. at 902.) At the booking desk, Hamilton had a
direct view of the classification unit, but not at all times. (Hamilton Dep. at 318 (15).) If the
intercom button was pressed, Hamilton denies hearing it. But even if Hamilton did hear the
intercom and Phelps’ request to see mental health, Phelps admits that he did not say that he was
going to harm himself. Hamilton testified that she had no way of knowing what Phelps was
going to do (Hamilton Dep. at 319 (20)), and Phelps has not raised a genuine issue of fact as to
whether Hamilton subjectively perceived that Phelps was going to remove the TV from the wall
and hurt himself. Indeed, even Phelps did not know. (Phelps Dep. at 924 (“I reacted and no
thought of doing it or thinking, okay, I should do this. It’s just a reaction that I just reacted with
no thought.”); see also Jamerson Dep. at 631 (28) (does not remember Phelps saying that he was
going to remove the TV from the wall and cut himself).)

17

Phelps contends that, when an inmate threatens to harm himself, the jail procedure requires that the inmate be
placed on a 10 minute watch in booking and consultation with Community Mental Health. (Opp’n Everett Mot. at
466, citing Everett Dep.) Phelps argues that policy was violated, thereby showing deliberate indifference, because
instead of placing him on 10 minute watches in booking, Peters came to attempt to calm him down. This argument is
entirely without merit. Phelps could not be taken into booking and placed on 10 minute watches until the incident in
progress was diffused, which is exactly what Everett and Peters did. Also, the Court notes that Phelps did not file the
deposition transcript of Everett, and it is not part of the record in this case.
23

When Hamilton heard the other inmates in the classification unit banging on the
windows, and saw that Phelps had removed the TV from the wall and cut himself, she promptly
called for assistance. Peters and other jail personnel responded and stopped Phelps from further
harming himself. (Hamilton Dep. at 319 (20); (Milburn Dep. at 683 (46) (Hamilton “grabbed a
nurse immediately”).)
Given these undisputed facts, no reasonable juror could find that based on Phelps’
requests alone, Hamilton subjectively perceived and drew the inference that Phelps showed a
strong likelihood he would remove the TV from the wall and harm himself. When Phelps
actually did remove the TV from the wall and began cutting himself, there is no dispute that
Hamilton immediately called for help and was not deliberately indifferent to Phelps’ serious
medical needs.
Everett and Hamilton entitled to qualified immunity.
For the foregoing reasons, the Court finds that Phelps has not advanced evidence from
which a reasonable juror could conclude that Everett and Hamilton were deliberately indifferent
to Phelps’ medical needs on August 19, 2014. Russell, 522 F. App’x at 317. Thus, as a matter of
law, Everett and Hamilton did not violate Phelps’ constitutional right to adequate medical care
and are entitled to qualified immunity. Conn, 526 U.S. at 290 (quoting Harlow, 457 U.S. at
818).
E. § 1983 Claim against Wilson and Tuscarawas County
1. Wilson
On summary judgment, Wilson argues that, because Phelps sued him in his official
(rather than individual) capacity, Phelps’ claims against Wilson are the same as his claims
24

against Tuscarawas County, and summary judgment should be granted in favor of Wilson on that
basis. (Mot at 277.) In opposition, Phelps does not address Wilson’s argument that § 1983
liability in his official capacity is functionally the same as Tuscarawas County’s liability.
“[A]n action against an individual officer in his official capacity is the functional
equivalence of an action against the municipality in which he serves.” Thomas v. Novicky, No.
4:13CV1469, 2014 WL 6896576, at *7 (N.D. Ohio Dec. 8, 2014) (citing among authority
Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) (official
capacity suits “‘generally represent only another way of pleading an action against an entity of
which the officer is an agent’”) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, n.55,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978))). Wilson is entitled to summary judgment on Phelps’
claims against him in his official capacity.
2. Tuscarawas County
“The deprivation of a constitutional right is a prerequisite to municipal liability under §
1983.” Pollard v. City of Columbus, Ohio, 780 F.3d 395, 401 (6th Cir. 2015) (citing Weeks v.
Portage Cty. Exec. Offices, 235 F.3d 275, 279 (6th Cir. 2000)). The Court has determined that no
reasonable juror could conclude that Everett and Hamilton were deliberately indifferent to
Phelps’ serious medical needs or had violated his constitutional right as a pretrial detainee to
adequate medical care. Therefore, no § 1983 liability can attach to Tuscarawas County. But even
if there were a genuine issue of material fact with respect to Phelps’ § 1983 claim against Everett
and Hamilton, Tuscarawas County would still be entitled to summary judgment.
Phelps alleges that Tuscarawas County is liable pursuant to § 1983 because Tuscarawas
County failed to have adequate policies, procedures, customs, and protocols regarding
25

identification, referral, and treatment of individuals with mental illness and self-injurious
behavior, and failed to train and supervise jail staff in this regard, resulting in the deprivation of
Phelps’ constitutional rights to adequate medical care for his serious medical needs on August
19, 2014. (See Compl. ¶¶ 33-36.) “[M]unicipal liability under section 1983 may only attach
where the ‘execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the injury’
complained of.” Estate of Graham v. Cty. of Washtenaw, 358 F.3d 377, 382 (6th Cir. 2004)
(quoting Monell, 436 U.S. at 694). Tuscarawas County cannot be held vicariously liable for
Everett’s and Hamilton’s alleged violation of Phelps’ constitutional rights, but can only be held
liable under § 1983 for actions taken by Everett and Hamilton pursuant to a policy of the county,
the execution of which caused Phelps’s injury. See Miller v. Calhoun Cty., 408 F.3d 803, 813
(6th Cir. 2005) (citation omitted). On summary judgment, the “primary issue is whether [Phelps]
has alleged sufficient facts to establish that the alleged constitutional violation happened because
of the execution of [the County’s] policy.’” Estate of Graham, 358 F.3d at 383 (emphasis in
original) (quoting Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
Tuscarawas County argues that it is entitled to judgment because Phelps has failed to
identify a specific policy or custom pursuant to which Everett and Hamilton acted to deprive him
of his constitutional right to adequate medical care as pretrial detainee. (Tusc. Cty. Mot. 47 at
276.) “In fact, the plaintiff’s claim is that the County failed to have adequate policies, procedures
and customs regarding identification, referral and treatment due inmates experiencing symptoms
of bipolar, schizophrenia, extreme self-harm, and being suicidal. … Further, the plaintiff claims
that the County failed to adequately train and supervise the jail staff without providing an
26

explanation of what that training was supposed to be or an explanation of how it would directly
have been applied to cause of [sic] prevent plaintiff’s unique actions.” (Id. at 276, citing Compl.
¶¶ 34-35.) Phelps does not identify a policy pursuant to which he claims Everett and Hamilton
acted (nor explain how any policy caused Phelps’ injury). Estate of Graham, 358 F.3d at 383;
see also Jackson v. Mowry, No. 1:12 CV 3083, 2013 WL 526916, at *3 (N.D. Ohio Feb. 11,
2013) (county entitled to judgment where plaintiff does not set forth any factual allegations that
either identify a particular county custom or policy or connect that policy to defendant’s alleged
deliberate indifference to plaintiff’s serious medical needs) (citing Estate of Graham, 358 F.3d at
383).
In opposing the motion, Phelps argues that Tuscarawas County and Wilson are liable
under § 1983 because the county ratified Everett’s and Hamilton’s alleged unconstitutional
conduct. Ratification is one way that Phelps can make a showing of an illegal policy or custom.
See Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). Citing Wilson’s deposition, Phelps maintains
that Wilson witnessed the incident on August 19, 2014, approved a false report by Hamilton,18
did not require Everett to write a report, did not conduct a meaningful investigation, and did not
punish Hamilton or Everett for their unconstitutional behavior despite witnessing their conduct.
Phelps argues that Wilson’s failure to conduct a bona fide investigation into the incident amounts
to ratification by Tuscarawas County of Everett’s and Hamilton’s actions. (Opp’n Tusc. Cty.
Mot. at 351-53.)

18

Phelps does not specify the portion of Hamilton’s report that he claims is false.
27

Monell liability can be established by a showing that the county ratified Hamilton and
Everett’s alleged unconstitutional acts by failing to meaningfully investigate and punish
allegations of unconstitutional conduct. France v. Lucas, No. 1:07CV3519, 2012 WL 5207555,
at *10 (N.D. Ohio Oct. 22, 2012), aff’d, 836 F.3d 612 (6th Cir. 2016) (citing Leach v. Shelby
County Sheriff, 891 F.2d 1241, 1247 (6th Cir. 1989)). “‘A municipality’s failure to investigate
claims of wrongful conduct, however, does not constitute a per se conclusion that the
municipality has a policy of tolerating violations of citizens[’] rights.’” Stillwagon v. City of
Delaware, 274 F. Supp. 3d 714, 773 (S.D. Ohio 2017) (quoting Gorecki v. City of Cambridge,
No. C2-07-420, 2009 WL 3242296, at *2 (S.D. Ohio Oct. 8, 2009). “As the Sixth Circuit has
warned, inferring a municipal-wide policy based solely on one instance of misconduct runs
dangerously close to ‘the collapsing of the municipal liability standard into a simple respondeat
superior standard.’” Id. (quoting City of Chattanooga, 398 F.3d at 432-33). Even with respect to
a failure-to-investigate Monell claim, the “guiding principle” of municipal liability is that the
government, as an entity, is responsible under § 1983 “‘when execution of [the] government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury. . . .’” Gorecki, 2009 WL 3242296, at *2
(quoting Monell, 436 U.S. at 694). “[T]o be liable under a ratification theory, the municipality’s
failure to investigate must be indicative of an official policy.” Id. And “[t]here must be ‘a direct
causal link’ between the policy and the alleged constitutional violation such that the County’s
‘deliberate conduct’ can be deemed the ‘moving force’ behind the violation. Estate of Graham,
358 F.3d at 383 (quoting Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir. 2001) (citing

28

Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997))
(quotation marks omitted) (further citation omitted)).
Thus, to establish his Monell claim, Phelps “must show not only that the investigation
was inadequate, but that the flaws in th[e] particular investigation were representative of (1) a
clear and persistent pattern of illegal activity, (2) which [Tuscarawas County] knew or should
have known about, (3) yet remained deliberately indifferent about, and (4) that the [Tuscawaras
County’s] custom was the cause [of Phelps’ injury].” City of Chattanooga, 398 F.3d at 432-33.
Even if the Court were to assume for the purpose of this analysis that the investigation
conducted by Wilson was inadequate, Phelps has presented no evidence indicating that
Tuscarawas County has not, in the past, investigated and disciplined officers involved in failed
suicide attempts by inmates in the jail, from which an inference in Phelps’ favor could be drawn
that the alleged inadequate investigation was conducted pursuant to an official policy or custom
and was the moving force behind Hamilton and Everett’s alleged unconstitutional conduct. Smith
v. City of Troy, Ohio, 874 F.3d 938, 947 (6th Cir. 2017) (Plaintiff has not shown that the
municipal defendants have demonstrated a pattern of inadequately investigating excessive force
claims, nor shown their alleged inadequate investigation, or alleged post hoc ratification of the
officer’s conduct, was a source of injury to him.) (citing Burgess, 735 F.3d at 478); Family Serv.
Ass’n of Steubenville v. Wells Twp., No. 2:12-CV-135, 2014 WL 11516089, at *8-9 (S.D. Ohio
Sept. 18, 2014), aff’d sub nom. Family Serv. Ass’n ex rel. Coil v. Wells Twp., 783 F.3d 600 (6th
Cir. 2015); Gorecki, 2009 WL 3242296, at *4; see also Brown v. Shaner, 172 F.3d 927, 931 (6th
Cir. 1999) (finding that summary judgment for the municipality was proper where plaintiffs
produced no evidence indicating that the city had in the past failed to investigate and discipline
29

the use of excessive force by its police personnel where such discipline was justified). Because
there is no genuine issue of material fact from which a reasonable juror could conclude that
Phelps has satisfied all of the elements of his Monell claim, Tuscawaras County is entitled to
summary judgment. Celotex, 477 U.S. at 322-23.
III. CONCLUSION
For all of the foregoing reasons, the motions for summary judgment of Everett (Doc. No.
46) and the Tuscarawas County defendants (Doc. No. 47) are granted.
IT IS SO ORDERED.

Dated: May 16, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

30