Jordan v. Summit County, Ohio and Summit County Board of Commissioners et al
Filing
20
Memorandum Opinion and Order. Defendants' Motion to Dismiss (Doc. 11 ) is GRANTED in part and DENIED in part. Plaintiff's request for leave to amend her complaint is DENIED without prejudice. See Memorandum Opinion and Order for details. Magistrate Judge Kathleen B. Burke on 9/11/2018. (Related documents 12 , 13 )(P,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELIZABETH A. JORDAN, individually
and as Administratrix of the Estate of
Deceased, Wayne K. Jordan,
Plaintiff,
)
CASE NO. 5:17-cv-02047
)
)
v.
)
SUMMIT COUNTY, OHIO
and SUMMIT COUNTY BOARD
of COMMISSIONERS, et al.
)
Defendants.
MAGISTRATE JUDGE
KATHLEEN B. BURKE 1
)
MEMORANDUM OPINION
AND ORDER
)
This case arises from the suicide of an inmate at the Summit County, Ohio, jail on
February 12, 2016. Four months after being jailed pursuant to an indictment charging him with
rape of a minor and four days before his scheduled trial date, Wayne K. Jordan (“Jordan”)
hanged himself in his cell.
Jordan’s widow, Plaintiff Elizabeth A. Jordan (“Plaintiff” or “Mrs. Jordan”), individually
and as Administratrix of Jordan’s estate, has filed a Complaint in which she alleges, among other
things, that Defendants Summit County, 2 Summit County Sheriff Steve Barry, two Sheriff’s
Deputies, 3 and unnamed “John Doe” employees of the Summit County jail 4 were deliberately
1
Pursuant to the consent of the parties, this case was transferred to the undersigned on July 26, 2018. Doc. 16.
2
The Complaint names as Defendants Summit County, Ohio, and Summit County Commissioners in their official
capacity. Doc. 1, ¶ 13. Defendants note that Summit County has no County Commissioners. Doc. 11, p. 10.
3
The Defendant Deputies are Steven Scofield (“Scofield”) and Rawney Trunko (“Trunko”).
4
Plaintiff has sued all individual Defendants in their individual and official capacities.
1
indifferent to Jordan’s serious medical needs, leading to his death. She asserts federal and state
law claims and seeks damages. 5
The parties have not yet taken discovery. Defendants have filed a Motion to Dismiss
(“Motion”), arguing, under Fed. R.Civ. P. 12(b)(6), that Plaintiff has failed to state a claim upon
which relief can be granted and that they are entitled to qualified immunity and state statutory
immunity. Doc. 11. Plaintiff has filed an opposition (Doc. 12) and Defendants have filed a reply
(Doc. 13). In her opposition, Plaintiff requests that Defendants’ motion to dismiss be denied in
its entirety or, alternatively, that she be granted leave to serve and file an amended complaint.
Doc. 12.
For the reasons explained below, the Motion is GRANTED in part and DENIED in
part. Plaintiff’s request for leave to amend her complaint is DENIED without prejudice.
I.
Background 6
Plaintiff’s Complaint alleges that Jordan, a 63 year old white male, was arrested on
October 2, 2015, following issuance of a secret indictment alleging six counts of rape and three
counts of gross sexual imposition involving a preteen female over a three-year period. Doc. 1, ¶¶
22, 31, 32. As part of initial health screenings conducted by Summit County Jail employees,
Jordan disclosed that a family member had committed suicide. Doc. 1, ¶ 38. Jordan was
referred for a mental health evaluation. Doc. 1, ¶ 38. On October 14, 2015, an unknown deputy
requested that Jordan be evaluated because the deputy felt that Jordan needed “to be on 1B for
5
Plaintiff’s Complaint also seeks injunctive relief but, in her opposition to Defendants’ motion to dismiss, Plaintiff
concedes that injunctive relief is not available. Doc. 12, p. 20.
6
These background facts are taken from the Complaint and attached Exhibits. When ruling on a motion to dismiss,
the court “must accept as true all the factual allegations contained in the complaint.” See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007)). Per Fed. R. Civ. P. 10(c),
“a copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”
2
his safety [due to] his [history] of brain aneurysm & [patient’s] actions like cutting in front of
other inmates.” Doc. 1, ¶ 43 (alterations in original), Doc. 1-6, p. 2. Also, on October 14, 2015,
a deputy (unnamed) requested that Jordan be evaluated because the deputy felt that Jordan was
anxious and depressed and he should not be in general population. Doc. 1, ¶ 44, Doc. 1-7.
Jordan denied homicidal/suicidal ideation but reported being depressed and anxious due to never
having been in jail before. Doc. 1-7. Jordan indicated he was having a hard time adjusting to
being in jail. Doc. 1-7. He was willing to deal with the jail stressors and was open to counseling
on a weekly basis. Doc. 1-7. During the October 14, 2015, evaluation, Jordan disclosed a
psychiatric hospitalization during the prior year “due to making a sarcastic statement about
suicide[.]” Doc. 1-7, p. 3. Following his October 14, 2015, evaluation, Jordan was diagnosed
with adjustment disorder with mixed anxiety and depression and there was a recommendation for
weekly counseling. Doc. 1-7, p. 6. It does not appear that counseling occurred. Doc. 1, ¶¶ 47,
48. Jordan was moved to Pod 1B but not placed on suicide watch. Doc. 1, ¶ 48. Over the next
few months leading up to Jordan’s scheduled trial, he expressed emotional distress and despair
about his situation but denied suicidal/homicidal ideation and was happy that his wife was
supporting him. Doc. 1, ¶¶ 58-62, Doc. 1-8, p. 3.
Summit County Jail Policies provide that deputies “must observe each inmate on the pod
at least once every twenty (20) minutes and be certain of their well being.” Doc. 1, ¶ 68 (quoting
from Summit County Jail Policy No. 8.2.2, General Housing, effective January 1, 2002). Other
Summit County Jail Policies require more frequent surveillance for mental health housing (at
least every 15 minutes) and potentially suicidal inmates (irregular intervals, not to exceed 10
minutes). Doc. 1, ¶¶ 70, 71.
On February 12, 2016, Jordan committed suicide by using bedding to hang himself in his
3
cell. Doc. 1, ¶ 64. Before the suicide, at 11:20 a.m., Deputy Scofield served a lunch tray to the
inmates in Unit B; Mr. Jordan received his lunch tray. Doc. 1, ¶ 64(a), Doc. 1-1, p. 2 (Report of
Investigation). At 11:50 a.m., the lunch trays were removed and the inmates were placed in
lockup. Doc. 1, ¶ 64(b), Doc. 1-1, p. 2. Deputy Scofield conducted a key tour at 11:52 a.m.,
visually inspected each cell and noted nothing unusual. Doc. 1, ¶ 65(c), Doc. 1-1, p. 2. At 12:33
p.m., 41 minutes after Deputy Scofield had conducted a key tour, Deputy Trunko conducted a
key tour and found Jordan unresponsive in his cell, with his face appearing “blue.” Doc. 1, ¶
65(d), Doc. 1-1, p. 2. Deputy Trunko called Central Control and requested that the cell door be
opened and he called for medical staff to respond. Doc. 1-1, p. 2. Deputy Trunko checked
Jordan for a pulse and found he did not have one. Doc. 1-1, p. 2. Medical staff arrived on scene
at 12:35 p.m. Doc. 1, ¶ 65(e). Once medical staff arrived, Jordan was rolled on his back and a
bed sheet was observed to be wrapped around his neck as a ligature, which was cut by Deputy
Trunko. Doc. 1-1, p. 2. Jordan was moved to the ground and resuscitation efforts were
commenced. Doc. 1, ¶ 65(e), Doc. 1-1, p. 2. The Akron Fire Squad arrived on scene at 12:38
p.m. Doc. 1, ¶ 65(f). Jordan was pronounced dead at 12:54 p.m., the cause of death being listed
as asphyxia due to hanging. Doc. 1-1, pp. 2, 3.
II.
Plaintiff’s Complaint and Defendants’ Motion to Dismiss
A. Plaintiff’s Complaint 7
1. First cause of action - 42 U.S.C. § 1983 civil rights claim for deliberate
indifference
In her first cause of action, Plaintiff alleges that all Defendants acted with deliberate
7
Plaintiff alleges five causes of action in her Complaint. Doc. 1, pp. 22-26. As noted above, Plaintiff concedes that
injunctive relief, which is requested in her fifth cause of action, is not available. Doc. 12, p. 20. Therefore, the fifth
cause of action will not be discussed further herein and Defendants’ motion to dismiss will be granted as to that
claim.
4
indifference to Jordan’s serious medical need of suicidal risk intervention and in violation of his
constitutional rights secured by the Fourteenth Amendment by: (1) failing to place him on any
suicide prevention protocol although Jordan identified a prior suicide attempt and a significant
number of known suicide risk factors, including depression, chronic medical conditions and a
recent prior inpatient psychiatric hospitalization; (2) failing to adequately detect and monitor
Jordan’s worsening mental and emotional status between October 2, 2015, and February 12,
2016, as required under Summit County Jail policies; (3) failing to “observe all inmates” at 20
minutes intervals as required under Summit County Jail Policy No. 8.2.2, General Housing; (4)
failing to respond to Jordan’s medical emergency on February 12, 2016, with reasonable
promptness and care; (5) failing to follow Summit County Jail Policy No. 7.1.0, Suicide
Detection and Response, to immediately cut the blankets and sheets from around Jordan’s neck;
and (6) failing to adequately investigate and punish the acts of the offending individuals who
deprived Jordan of his civil rights. Doc. 1, pp. 22-23, ¶ 84. Plaintiff alleges that Defendants’
actions and omissions as described in the Complaint directly and proximately caused Jordan to
sustain damages and extreme physical and emotional pain and suffering, which led to his death.
Doc. 1, p. 23, ¶ 86.
2. Second cause of action – 42 U.S.C. § 1983 civil rights claim for failure to train
In her second cause of action, Plaintiff asserts a § 1983 failure to train claim against
Defendant Barry and other as yet identified defendants with supervisory roles. 8 Doc. 1, p. 24, ¶¶
97-90. Plaintiff alleges that the failure of these defendants to train Jail corrections staff had the
effect of causing and/or ratifying the alleged unconstitutional indifference to Jordan’s condition
and risk of suicide and caused Jordan’s suffering and death. Doc. 1, p. 24, ¶¶ 87-90.
8
“An official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public
entity which that agent represents.” Scott v. Clay County, Tenn., 205 F.3d 867, 879 (6th Cir. 2000).
5
3. Third cause of action – Willful, wanton, and reckless conduct
Plaintiff’s third cause of action appears to be a state law claim. Plaintiff alleges that the
individual Defendants, while engaged in their functions as employees of the Jail, acted in a
willful, wanton and reckless manner, disregarding the serious risk to Jordan’s rights and safety,
and such conduct was the direct and proximate cause of Jordan’s suffering and death. Doc. 1,
pp. 24-25, ¶¶ 91-92.
4.
Fourth cause of action – Wrongful death
In her fourth cause of action, Plaintiff alleges a state law claim for wrongful death,
arguing that Defendants’ actions as described in the Complaint proximately caused Mr. Jordan’s
death. Doc. 1, p. 25, ¶¶ 93-95.
B. Defendants’ Motion to Dismiss
In their Motion to Dismiss, Defendants argue that (1) Plaintiff’s Complaint fails to allege
facts showing that Defendants were deliberately indifferent to Mr. Jordan (Doc. 11, pp. 4-7, Doc.
13, pp. 2-8); (2) the individual Defendants are entitled to qualified immunity (Doc. 11, pp. 7-10,
Doc. 13, pp. 8-10); (3) the County Defendant is immune from liability pursuant to Monell 9 (Doc.
11, pp. 10-11, Doc. 13, pp. 10-11); (4) Plaintiff’s Complaint fails to show how Defendant Barry
or the County failed to train the deputies at the Jail (Doc. 11, pp. 11-13, Doc. 13, pp. 11-12); and
(5) Plaintiff cannot succeed on her state law claims because Defendants are entitled to immunity
under O.R.C. Chapter 2744 (Doc. 11, pp. 14-17, Doc. 13, p. 12).
III.
Law and Analysis
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell
9
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
6
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662
(2009) (clarifying the plausibility standard articulated in Twombly). The factual allegations of a
pleading must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S.
at 555. The Court must accept all well-pleaded factual allegations as true but need not “accept as
true a legal conclusion couched as a factual allegation.” Id. “Plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. (internal quotation marks
omitted). Nevertheless, while it may be that a plaintiff may not ultimately succeed in proving
her claims, “a well-pleaded complaint may proceed even if it appears ‘that recovery is very
remote and unlikely[.]’ Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974)).
A. 42 U.S.C. § 1983
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” Gray v. City of Detroit, 399 F.3d 612,
615 (6th Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L.Ed.2d 40
(1988)); Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir. 2001) (“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.’”)
(quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); see also Jerauld v.
Carl, 405 Fed. Appx. 970, 974-975 (6th Cir. Dec. 30, 2010).
Plaintiff alleges a violation of Jordan’s constitutional rights, arguing Defendants violated
his right to be free from deliberate indifference to a serious medical need, the right to be free
7
from cruel and unusual punishment and the right to reasonable medical treatment while detained
so as not to unnecessarily and wantonly inflict pain. Doc. 1, p. 23, ¶ 85, Doc. 12, pp. 8-12 (citing
both Eighth and Fourteenth Amendment protections).
The individually named Defendants have raised qualified immunity as a defense.
“[Q]ualified immunity shields officials from civil liability if their conduct ‘does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” Richmond v. Huq, 885 F.3d 928, 947 (6th Cir. 2018) (quoting Pearson v. Callahan,
555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). If qualified immunity applies, it is
“an immunity from suit rather than just a mere defense to liability[.]” Pearson v. Callahan, 555
U.S. 223, 231, 129 S.Ct. 808, 172 L.E.2d 565 (2009). While acknowledging that “insubstantial
claims against government officials should be resolved as early in the litigation as possible,
preferably prior to broad discovery, [the Sixth Circuit] also ha[s] cautioned that it is generally
inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity[,]” noting that summary judgment is generally the more appropriate time to resolve
qualified immunity. See Courtright v. City of Battlecreek, 839 F.3d 513, 518 (6th Cir. 2016)
(internal quotations and citations omitted); see also Greer v. City of Highland Park, Michigan,
884 F.3d 310, 317 (6th Cir. 2018) (affirming denial of motion for judgment on the pleadings
based on qualified immunity) (citing Courtright, 839 F.3d at 518).
There are two steps in a Court’s qualified immunity analysis. In Step 1, the Court
decides whether, viewing the allegations in a light most favorable to the party injured, a
constitutional right has been violated. In Step 2, the Court must determine whether that right was
clearly established. Richmond v. Huq, 885 F.3d at 947 (quoting Estate of Carter v. City of
Detroit, 408 F.3d 305, 310–11 (6th Cir. 2005, citing Saucier v. Katz, 533 U.S. 194, 201, 121
8
S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “Ultimately, the plaintiff bears the burden of showing that
an officer is not entitled to the defense of qualified immunity.” Courtright, 839 F.3d at 518.
The Eighth Amendment prohibits “deliberate indifference to serious medical needs of
prisoners [because it] constitutes ‘unnecessary and wanton infliction of pain.’” Estelle v.
Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal citation omitted).
Thus, “[a] prisoner’s Eighth Amendment right is violated when prison doctors or officials are
deliberately indifferent to the prisoner’s serious medical needs.” Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001) (citing Estelle, 429 U.S. at 103). “[P]rison officials who have been
alerted to a prisoner’s serious medical needs are under an obligation to offer medical care to such
a prisoner.” Comstock, 273 F.3d at 702 (citing Danese, 875 F.2d at 1244).
Jordan was a pretrial detainee. The Sixth Circuit, along with “other circuits, have held
that the Eighth Amendment cruel and unusual punishment analysis used by the Court in Estelle .
. . is applicable to pretrial detainees.” Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir. 1989)
(full internal citation omitted) (discussing Bell v. Wolfish, 441 U.S. 520, 535 (1979) wherein the
Supreme Court concluded that, “under due process of law, pretrial detainees may not be
punished because they have not yet been judged guilty.”); see also Gray, 399 F.3d at 615-616
(“While the Eighth Amendment does not apply to pre-trial detainees, the Due Process Clause of
the Fourteenth Amendment does provide [pre-trial detainees] with a right to adequate medical
treatment that is analogous to prisoner’s rights under the Eighth Amendment.”) (citing City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983); Watkins
v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 2001)).
With respect to a deliberate indifference claim under the Eighth Amendment, the Sixth
Circuit has explained that:
9
An Eighth Amendment claim has two components, one objective and one
subjective. [ 10] To satisfy the objective component, the plaintiff must allege that the
medical need at issue is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825,
834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To satisfy the subjective component,
the plaintiff must allege facts which, if true, would show that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner, that
he did in fact draw the inference, and that he then disregarded that risk. Farmer,
511 U.S. at 837, 114 S.Ct. 1970. Emphasizing the subjective nature of this inquiry,
the Supreme Court has noted that “an official's failure to alleviate a significant risk
that he should have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.” Id. at 838, 114 S.Ct.
1970 (emphasis added).
Comstock, 273 F.3d at 702-703.
“[T]o satisfy the objective component of an Eighth Amendment claim, the plaintiff must
allege that the medical need at issue is ‘sufficiently serious.’” Comstock, 273 F.3d at 703
(quoting Farmer, 511 U.S. at 834). Here, Plaintiff alleges that Mr. Jordan’s medical emergency
and psychological needs, including suicidal tendencies, were the medical needs at issue. Doc. 1.
The Sixth Circuit has held that “a prisoner’s ‘psychological needs may constitute serious medical
needs, especially when they result in suicidal tendencies.’” Id. (quoting Horn v. Madison Cty.
Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994).
10
Whether a pretrial detainee has to satisfy the subjective intent element is a question subject to some debate. In
2015, “[t]he Supreme Court in Kingsley v. Hendrickson, — U.S. —, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), held
that a pretrial detainee’s Fourteenth Amendment excessive force claim need only meet the objective component of
showing that the ‘force purposely or knowingly used against him was objectively unreasonable.’” Richmond v. Huq,
885 F.3d 928, 938, n. 3 (6th Cir. 2018)) (quoting Kingsley, 135 S.Ct. at 2473). Noting that the Sixth Circuit had
“not yet considered whether Kingsley similarly abrogate[d] the subjective intent requirement of a Fourteenth
Amendment deliberate indifference claim[,]” the Sixth Circuit in Richmond observed “that this shift in Fourteenth
Amendment deliberate indifference jurisprudence call[ed] into doubt whether the” detainee had to satisfy the
subjective component. Id. Notwithstanding the court’s observations, the court in Richmond proceeded to apply the
Eighth Amendment standard. Id. at 938, 939. Also, other cases within the Sixth Circuit have “applied the Eighth
Amendment [deliberate indifference] standard to inadequate-medical-care claims brought by pretrial detainees even
after Kingsley.” Gilmore v. York, 2018 WL 1737120, * 8 (E.D. Mich. Apr. 4, 2018); Phelps v. Tuscarawas County,
Ohio/Tuscarawas County Board of Commissioners, 2018 WL 2234917, * 8, n. 11 (N.D. Ohio May 16, 2018)
(noting that the Sixth Circuit had not yet determined whether Kingsley abrogated the subjective component of a
Fourteenth Amendment deliberate indifference claim). Here, neither party has cited or addressed Kingsley or argued
that Kingsley changed the deliberate indifference standard. Thus, in resolving the pending motion to dismiss, the
Court applies both the objective and subjective components of the Eighth Amendment deliberate indifference
standard as have other courts since Kingsley.
10
The subjective component requires that a plaintiff “allege facts, which if true, would
show that (1) the official being sued subjectively perceived facts from which to infer substantial
risk to the prisoner, (2) that he did in fact draw that inference, and (3) that he disregarded that
risk.” Jerauld, 405 Fed. Appx. at 975-976 (quoting Comstock, 273 F.3d at 703 (internal
quotations omitted). When a plaintiff alleges “deliberate indifference [he] must show more than
negligence or the misdiagnosis of an ailment . .. [but] a plaintiff need not show that the official
acted for the very purpose of causing harm or with knowledge that harm will result.” Comstock,
273 F.3d at 703 (citing Estelle, 429 at 206; Farmer, 511 U.S. at 835; Horn, 22 F.3d at 660)
(internal quotations omitted). Thus, “deliberate indifference to a substantial risk of serious harm
to a prisoner is the equivalent of recklessly disregarding that risk.” Id. (citing Farmer, 511 U.S.
at 836).
The Sixth Circuit has indicated that the proper inquiry for determining liability under §
1983 for a pretrial detainee’s suicide is “whether the decedent showed a strong likelihood that he
would attempt to take his own life in such a manner that failure to take adequate precautions
amounted to deliberate indifference to the decedent’s serious medical needs.” Russell v. Davis,
522 Fed. Appx. 314, 317 (6th Cir. Apr. 10, 2013) (quoting Barber v. City of Salem, 953 F.2d
232, 239-240 (6th Cir. 1992)).
1. Individual Defendants
The two steps of the qualified immunity analysis may be addressed in any order but, if
both steps are not satisfied, then qualified immunity shields an individual government officer
from civil damages. Courtright, 839 F.3d 518. Defendants do not contend that the law that
“prison officials who have been alerted to a prisoner’s serious medical needs are under an
obligation to offer medical care to such a prisoner[,]” (Comstock, 273 F.3d at 702 (citing
11
Danese, 875 F.2d at 1244)), was not clearly established at the time of Jordan’s suicide. Thus, the
focus of the Court’s inquiry is on the first prong of the qualified immunity analysis, i.e.,
“whether, considering the allegations in a light most favorable to the party injured, a
constitutional right has been violated.” Richmond, 885 F.3d at 947.
The Sixth Circuit has also stated that a “plaintiff must allege with particularity ‘facts that
demonstrate what each defendant did to violate the asserted constitutional right.’” Courtright,
839 F.3d at 518 (emphasis in original). Thus, the Court separately considers below the
allegations asserted against each of the individual Defendants 11 to assess whether qualified
immunity applies.
a. Defendant Trunko
The Court concludes that Plaintiff’s Complaint states a plausible constitutional claim for
deliberate indifference as against Deputy Trunko. As alleged in the Complaint, on February 12,
2016, Defendant Trunko found Mr. Jordan unresponsive in his cell at 12:33 p.m. and called for
assistance. Doc. 1, ¶ 65(d). This allegation is sufficient to state a plausible claim that Defendant
Trunko subjectively perceived facts from which to infer a substantial risk to Mr. Jordan and did
draw that inference. Further, Plaintiff alleges that Defendant Trunko failed to respond with
reasonable promptness and care to Mr. Jordan’s medical emergency on February 12, 2016. Doc.
1, ¶¶ 75, 76, 12 84(d). This allegation is sufficient to state a plausible claim that Defendant
11
As discussed above, Plaintiff has sued the individual Defendants in their individual and official capacity. “An
official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity
which that agent represents.” Scott, 205 F.3d at 879.
12
Plaintiff’s Complaint alleges that Deputy Trunko, not Deputy Scofield, discovered Mr. Jordan unresponsive and
the incident report referred to by Plaintiff in ¶ 76 of her Complaint also indicates that Deputy Trunko found Mr.
Jordan. See Doc. 1, ¶ 65(d), Doc. 1-10, p. 3; see also Doc. 12 (Plaintiff’s opposition brief, indicating that Deputy
Trunko found Mr. Jordan). Thus, the reference in ¶ 76 of the Complaint to Deputy Scofield appears to be a
scrivener’s error.
12
Trunko disregarded the substantial risk to Mr. Jordan. While Plaintiff ultimately may not
succeed in proving her claims, “a well-pleaded complaint may proceed even if it appears ‘that
recovery is very remote and unlikely[.]’ Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
For the reasons stated, the Court DENIES Defendants’ motion to dismiss the individual §
1983 claim against Defendant Trunko (first cause of action) for failure to state a claim and/or
based on qualified immunity.
b. Defendant Scofield
The Court concludes that Plaintiff’s Complaint fails to state a plausible constitutional
claim for deliberate indifference as against Deputy Scofield. Plaintiff’s Complaint contains no
factual allegations from which it can plausibly be said that Defendant Scofield “subjectively
perceived facts from which to infer substantial risk to [Jordan.]” Jerauld, 405 Fed. Appx. at 975976. With respect to Deputy Scofield, the Complaint alleges only that he served lunch to the
inmates in Jordan’s unit at 11:20 a.m. and conducted a key tour at 11:52 a.m. Doc. 1, ¶¶ 65(a),
(c). These allegations are insufficient to state a plausible claim that Deputy Scofield was
deliberately indifferent to Jordan’s serious medical needs under the subjective component of the
deliberate indifference standard.
There is no allegation that Deputy Scofield knew that Jordan was at risk of committing
suicide on February 12, 2016. For example, while Plaintiff alleges that, on October 14, 2015,
Jordan disclosed that he was hospitalized approximately six months prior to his arrest for making
statements regarding suicide and that a close family member had committed suicide, Doc. 1, ¶¶
13
28, 45, 13 the Complaint does not allege that this information was known by or relayed to Deputy
Scofield. 14 Further, there is no allegation that Jordan relayed an intent to harm himself to Deputy
Scofield or exhibited to Deputy Scofield behaviors from which Scofield would have inferred that
Jordan was at a substantial risk for suicide on February 12, 2016. In fact, the Report of
Investigation attached to Plaintiff’s Complaint indicates that, when Scofield conducted a key tour
at 11:52 a.m., he visually inspected each cell and noted nothing unusual. Doc. 1-1, p. 2.
Plaintiff relies on her allegations that Jordan had a number of suicide risk factors,
including being a white male, being held on an offense involving sexual assault of a minor,
having no history of prior arrests depression, chronic medical conditions, and recent history of
inpatient hospitalization and suicidal behavior. Plaintiff argues, from these factors, that
Defendants “should have drawn the inference that Mr. Jordan was a suicide risk.” Doc. 12, p.
11 (emphasis supplied). However, those allegations are insufficient to state a plausible claim for
deliberate indifference against Defendant Scofield. 15 As stated by the Supreme Court in Farmer,
“an official’s failure to alleviate a significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be condemned as the infliction of
punishment.” Farmer, 511 U.S. at 838 (emphasis supplied). For instance, courts have rejected
13
Exhibit F (Doc. 1-7) to the Complaint indicates that Jordan disclosed to a licensed social worker with Summit
Psychological Associates, Inc. that he had a psychiatric hospitalization “due to making a sarcastic statement about
suicide a year ago.” Doc. 1-7, p. 3.
14
Moreover, courts have found no liability even when there is knowledge of prior suicidal thoughts or statements.
See e.g., Soles v. Ingham, 148 Fed. Appx. 418, 419-420 (6th Cir. 2005) (finding defendants not deliberately
indifferent due to their decision to return decedent to general population where decedent had expressed no suicidal
thoughts for approximately two weeks and exhibited no increased risk for suicide); Ellis v. Washington Cty., Tenn.,
80 F.Supp.2d 791, 800-801 (E.D. Tenn. 1998), affirmed 198 F.3d 225, 227 (6th Cir. 1999) (finding defendant
entitled to qualified immunity where “the most that [could] be said about [defendant] [was] he knew [decedent] had
been suicidal in the recent past.”).
15
Plaintiff also includes allegations in her Complaint regarding letters Jordan sent to his wife and phone calls that he
had with her. Doc. 1, ¶¶ 59, 62. There is no allegation that the letters were reviewed by the individual Defendants
and, while Plaintiff alleges that the phone calls were recorded, there is no allegation that the individual Defendants
heard the phone calls.
14
claims that officials should have been on notice that a detainee was a suicide risk on the basis
that a detainee fit a profile of someone being most likely to commit suicide, finding that, “[j]ail
officials cannot be charged with knowledge of a particular detainee’s high suicide risk based
solely on the fact that the detainee fits a profile of individuals who purportedly are more likely to
commit suicide than those who do not fit the profile in all respects.” Crocker ex rel. Estate of
Tarzwell v. County of Macomb, 119 Fed. Appx. 718, 723 (6th Cir. Jan. 4, 2005); BakerSchneider v. Napoleon, 2018 WL 1326296, * 9 (E.D. Mich. Mar. 15, 2018) (“[A] plaintiff cannot
ever establish an officer’s subjective knowledge of an inmate’s risk of suicide based on a profile
of individual’s likely to commit suicide.”) (relying on Crocker, 119 Fed. Appx. at 723).
Similarly, here, Plaintiff claims that Defendants should have known or should have
drawn an inference, based on generalized “suicide risk factors.” The factual allegations of a
pleading must be sufficient to raise a right to relief above the speculative level. Twombly, 550
U.S. at 555. And, while the Court must accept all well-pleaded factual allegations as true, the
Court need not “accept as true a legal conclusion couched as a factual allegation.” Id.
“Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
(internal quotation marks omitted). Accordingly, even if true, the Court finds that the allegations
in the Complaint do not state a claim for deliberate indifference against Defendant Scofield.
Plaintiff’s conclusory allegation that Defendants failed to adequately detect and monitor
Mr. Jordan’s worsening mental and emotional status, Doc. 1, ¶ 84, does not state a claim for
relief under applicable § 1983 case law. The Sixth Circuit has observed, “the right to medical
care for serious medical needs does not encompass the right to be screened correctly for suicidal
tendencies.” Id. (internal quotations omitted) (emphasis supplied); Gray, 399 F.3d at 616
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(indicating that “there is no general constitutional right of detainees to receive suicide screenings
or be placed in suicide safe facilities, unless the detainee has somehow demonstrated a strong
likelihood of committing suicide[]”) (discussing Barber v. City of Salem, Ohio, 953 F.2d 232,
237 (6th Cir. 1992) and citing Danese, 875 F.2d at 1244 and Crocker v. County of Macomb, 199
Fed Appx. 718, 724 (6th Cir. 2005)(unpublished)). Also, the Supreme Court recently held “no
decision of this Court establishes the right to the proper implementation of adequate suicide
prevention protocols.” Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78
(2015); see also Broughton v. Premier Health Care Services, Inc., 656 Fed. Appx. 54, 57 (6th
Cir. July 15, 2016) (quoting Comstock, 273 F.3d at 703 and Taylor, 135 S.Ct. at 2044).
Nor does Plaintiff’s additional conclusory allegation that Defendants were deliberately
indifferent to Jordan’s serious medical needs because they failed to follow or adequately adhere
to Jail policies, Doc. 1, ¶ 84, state a claim for relief under § 1983. See Barber, 953 F.2d at 240
(“failure to comply with a state regulation is not itself a constitutional violation[]”); see also
Smith v. Eyke, 2011 WL 1528155, * 9 (W.D. Mich. Apr. 20, 2011) (“Defendants’ alleged failure
to comply with a statute, administrative rule, or policy does not itself rise to the level of a
constitutional violation.”) (citing Sixth Circuit cases, including Barber, 953 F.2d at 240).
For the reasons discussed above, the Court GRANTS Defendant’s motion to dismiss the
individual § 1983 claim against Defendant Scofield (first cause of action) for failure to state a
claim and/or based on qualified immunity.
c. Defendant Barry
The Court concludes that Plaintiff’s Complaint fails to state a plausible constitutional
claim for deliberate indifference as against Sheriff Barry. In her opposition brief, Plaintiff states
that “Plaintiff has not alleged that Defendant Barry had any direct responsibility for supervision
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of Mr. Jordan or that he had any greater awareness of a suicide risk tha[n] the defendant
deputies.” Doc. 12, p. 14. Considering this statement, and finding no allegations specific to
Defendant Barry in the Complaint that would state a plausible claim that he was deliberately
indifferent to Jordan’s serious medical needs under the subjective component of the deliberate
indifference standard, the Court GRANTS Defendant’s motion to dismiss the individual § 1983
claim against Defendant Barry (first cause of action) for failure to state a claim and/or based on
qualified immunity.
2. Municipal Liability Claim against Summit County
Plaintiff contends that Summit County is liable under § 1983 for failing to properly train
and supervise its staff and for implicitly authorizing, approving, ratifying or acquiescing in
unconstitutional conduct. Doc. 12, pp. 16-18. Unlike individual government officers, “a
municipality is not entitled to qualified immunity.” Barber, 953 F.2d at 237.
In City of Canton, Ohio v. Harris, the Supreme Court explained that:
In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978), we decided that a municipality can be found liable under §
1983 only where the municipality itself causes the constitutional violation at issue.
Respondeat superior or vicarious liability will not attach under § 1983. Id., at 694–
695, 98 S.Ct. at 2037–38. “It is only when the ‘execution of the government's policy
or custom ... inflicts the injury’ that the municipality may be held liable under §
1983.” Springfield v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 1119, 94 L.Ed.2d
293 (1987) (O'CONNOR, J., dissenting) (quoting Monell, supra, 436 U.S., at 694,
98 S.Ct. at 2037–38).
City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412
(1989).
The Supreme Court held that:
the inadequacy of police training may serve as the basis for § 1983 liability only
where the failure to train amounts to deliberate indifference to the rights of persons
with whom the police come into contact.[] This rule is most consistent with our
admonition in Monell, 436 U.S., at 694, 98 S.Ct., at 2037, and Polk County v.
Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981), that a
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municipality can be liable under § 1983 only where its policies are the “moving
force [behind] the constitutional violation.” Only where a municipality's failure to
train its employees in a relevant respect evidences a “deliberate indifference” to the
rights of its inhabitants can such a shortcoming be properly thought of as a city
“policy or custom” that is actionable under § 1983.
City of Canton, 489 U.S. at 388–89 (footnote omitted). In discussing a plaintiff’s failure to train
claim, the Sixth Circuit explained that:
In order to prevail against a municipality, the plaintiff must show that inadequate
training represented a city policy and that the need for better training was so
obvious and the inadequacy so likely to result in a violation of a constitutional
rights, that the municipality can be said to have been deliberately indifferent to the
need.
Barber, 953 F.2d at 235-236 (citing City of Canton, 109 S.Ct. at 1204-1205).
While Plaintiff ultimately may not succeed in proving her claims, “a well-pleaded
complaint may proceed even if it appears ‘that recovery is very remote and unlikely[.]’
Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974)). At this early stage of the proceedings, the Court finds that Plaintiff has
sufficiently pled a Monell claim.
For the reasons stated, the Court DENIES Defendants’ motion to dismiss the §1983
claims asserted against Defendant Summit County (first and second causes of action).
B. State law claims
Defendants seek dismissal of Plaintiff’s third and fourth causes of action based on state
law immunity.
Ohio courts use a three-tiered analysis to determine whether a political subdivision is
immune from liability in a tort action. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 270
(2007) (internal citations omitted). First, there is “the general rule that a political subdivision is
immune from liability incurred in performing either a governmental or proprietary function.” Id.
That immunity is not absolute. Id. Second, the court looks at whether any of the five exceptions
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to immunity contained in R.C. § 2744.02(B) apply to open the political subdivision up to
liability. Id. If any of the exceptions to immunity in R.C. § 2744.02(B) apply and if there is no
defense within that section that protects the political subdivision from liability, then the third step
requires the court to assess whether any of the defenses under R.C. § 2744.03 apply. Id.
Defendants contend that there are no exceptions to immunity under R.C. § 2744.02(B)
and therefore Summit County, a political subdivision, is immune from liability, pointing out that
the exception in R.C. § 2744.02(B)(4) pertaining to injury or death caused by negligence of the
political subdivision’s employees that occurs within or on the grounds of buildings used in
connection with the performance of a governmental function excludes jails. Plaintiff does not
raise a specific challenge to Defendants’ argument that the political subdivision itself is entitled
to immunity under R.C. § 2744.02; she argues that Defendants ignore that she is not arguing that
Defendant’s employees were merely negligent but rather that the Defendant’s employees’
conduct was wanton and reckless. Doc. 12, p. 19. As discussed below, the allegation that the
Defendant employees acted wantonly or recklessly pertains to whether the individual Defendants
are entitled to statutory immunity. The Court finds that Plaintiff’s state law claims should be
dismissed against Defendant Summit County based on the statutory immunity found in R.C. §
2744.02 (third and fourth causes of action).
As it pertains to individual employees of a political subdivision, the immunity analysis is
different. Cramer, 113 Ohio St.3d at 270. Instead of the three-tiered analysis, a court looks at
R.C. § 2744.03(A)(6). Id.; see also Gattrell v. Utica, 63 N.E.2d 461, 470 (5th Dist. 2016).
Under R.C. § 2744.03(A)(6), “an employee is immune from liability unless the . . . employee’s
acts or omissions were malicious, in bad faith, or wanton or reckless . . .” Cramer, 113 Ohio
St.3d at 270. (citing R.C. § 2744.03(A)(6)). Having concluded that Defendant Trunko is not
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entitled to qualified immunity on the § 1983 deliberate indifference claim and considering that
Plaintiff’s Complaint alleges that the individual Defendants’ acts or omissions were done in a
wanton or reckless manner, the Court finds that Plaintiff’s state law claims against Defendant
Trunko in his individual capacity are not subject to dismissal at this juncture (third and fourth
causes of action). However, for reasons similar to those discussed above in connection with
Plaintiff’s § 1983 claims against Defendants Scofield and Barry, the Court finds that the state
law claims against those Defendants should be dismissed based on state law immunity (third and
fourth causes of action).
IV. Plaintiff’s Request for Leave to Amend Complaint
In her opposition brief, Plaintiff requests that, if the Court “is persuaded to dismiss all or
any part of [Plaintiff’s] Complaint that Plaintiff be permitted to file an Amended Complaint to
cure any defects in the pleading.” Doc. 12, p, 20.
While Fed. R. Civ. P. 15(a)(2), provides that a “court should freely give leave when
justice requires[,]” a request for an order granting leave to amend, as any motion, must comply
with Fed. R. Civ. P. 7 and “state with particularity the grounds for seeking the order[.]” See e.g.,
Tumminello v. Father Ryan High School, Inc., 678 Fed. Appx. 281, 289-290 (6th Cir. Jan. 30,
2017) (affirming district court’s denial of plaintiff’s request for leave to amend submitted in
response to a motion to dismiss where the request did not state the grounds for seeking the order
and where the court did not know the substance of the proposed amendment).
Here, Plaintiff has not filed a motion. Nor has she stated the grounds for seeking leave to
amend or apprised this Court of the specifics of how she proposes to amend her Complaint.
Accordingly, the Court DENIES without prejudice Plaintiff’s request for leave to amend her
complaint, because the Court is unable to find that justice requires granting such leave. Id. (“[I]n
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order to determine whether justice requires the granting of a motion to amend, the court must
know the substance of the proposed amendment.”). In making this ruling, the Court notes that
Plaintiff has included John Doe Defendants in Complaint. Recognizing that discovery has not
yet commenced, the Court intends, at the Case Management Conference, to provide a deadline
by which Plaintiff will be required to seek leave to amend her Complaint to identify the John
Doe Defendants and set forth her claims against those defendants.
V. Conclusion
For the reasons explained herein, Defendants’ motion to dismiss is GRANTED in part
and DENIED in part. Defendants’ motion to dismiss the first cause of action is DENIED as to
Defendant Trunko in his individual capacity and GRANTED as to Defendants Scofield and
Barry in their individual capacities based on failure to state a claim for relief and/or qualified
immunity. Defendants’ motion to dismiss the first and second causes of action as to Defendant
Summit County is DENIED. Defendants’ motion to dismiss the third and fourth causes of
action as to Summit County and Defendants Scofield and Barry in their individual capacities is
GRANTED based on state law immunity. Defendants’ motion to dismiss the third and fourth
causes of action as to Defendant Trunko in his individual capacity is DENIED. Defendants’
motion to dismiss the fifth cause of action is GRANTED. Plaintiff’s request for leave to amend
her complaint is DENIED without prejudice.
/s/ Kathleen B. Burke
_______________________________
Kathleen B. Burke
United States Magistrate Judge
September 11, 2018
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