Roell v. Hamilton County, OH/Board of County Commissioners et al
Filing
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ORDER granting 33 Third-Party defednant Nancy Roell's Motion to Dismiss for Failure to State a Claim; finding as moot [38 & 39] Motions for Leave to File amicus curiae briefs. Signed by Judge Sandra S Beckwith on 6/8/15. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Nancy Roell, as the Executrix of the
Estate of Gary L. Roell, Sr.
Plaintiff,
vs.
Hamilton County, Ohio Board of
Commissioners, et al.,
Defendants.
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) Case No. 1:14-CV-637
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ORDER
This matter is before the Court on Third-Party Defendant Nancy Roell’s motion to
dismiss Defendants’ third-party complaint. Doc. No. 33. For the reasons that follow, the
motion to dismiss is well-taken and is GRANTED. The motions to file amicus curiae briefs
(Doc. Nos. 38 & 39) are MOOT.
I. Background
This case concerns the death of Gary Roell, Sr., which allegedly resulted from being
tased by Hamilton County Deputy Sheriffs Joseph Huddleston, Matthew Alexander, and
Willy Dalid.
Gary Roell, Sr. suffered from schizoaffective disorder and delusional disorder for
most of his life. Complaint (Doc. No. 1) ¶ 12. In 1998, Roell was declared incompetent by
the Hamilton County Probate Court, and his wife, Plaintiff/Third-Party Defendant Nancy
Roell, was appointed his legal guardian. Third Party Complaint (Doc. No. 24) ¶¶ 4-6. As
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Roell’s guardian, Nancy Roell had a duty to protect and control the person of Roell. Id. ¶
6; Ohio Rev. Code § 2111.13(A)(1).
On August 11, 2013, Nancy Roell left Roell at home by himself while she went on
a trip to New Jersey with her church group. Third-Party Complaint ¶ 12; Complaint ¶ 15.
The Third-Party Complaint alleges that in the six weeks before this trip, Roell began
decompensating and behaving erratically. Third-Party Complaint ¶ 8. Roell also refused
to be injected with medication that prevented him from becoming psychotic and cancelled
an appointment with his treating psychiatrist. Id. ¶¶ 9-10. The complaint, on the other
hand, alleges that Nancy Roell had taken such trips before without incident. Complaint ¶
15.
In any event, on the afternoon of August 12, 2013, Roell began acting extremely
erratically. He dumped items from the refrigerator and kitchen cabinets onto the floor,
spread dirt throughout their condominium, ran water hoses in and around their
condominium, spread board game cards throughout the parking lot, and put plant debris
in neighbors’ mailboxes. Complaint ¶ 17.
Then, at around, 1:30 a.m. on the morning of August 13, 2013, Roell entered a
neighbor’s fenced-in patio and broke a window. The neighbor called 911 and told the
operator that Roell was acting “crazy.” Complaint ¶¶ 19-20. When Hamilton County
Deputy Sheriffs Huddleston, Alexander, and Dalid arrived on the scene at about 1:50 a.m.,
Roell was naked from the waist down. He was holding a garden hose in one hand and a
hanging flower basket in the other hand. Id. ¶ 21-23. Despite the fact that Roell’s hands
were visible, Huddleston and Alexander yelled at him, “give us your hands, give us your
hands,” and warned him to “lay on the ground or you’ll be tased.” Complaint ¶ 24.
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Without giving Roell time to comply with their orders, the deputies commenced to
use force on Roell to effect an arrest. Huddleston deployed his taser on Roell six times
during the encounter, including once to the chest. Complaint ¶¶ 25-28. The deputies also
caused blunt force injuries to Roell’s head, torso, and extremities in wrestling him to the
ground. Id. ¶ 34. Roell stopped breathing and died shortly after being handcuffed by the
deputies. Id. ¶¶ 37-38.
The complaint alleges that the cause of Roell’s death was excited delirium, “a
condition almost exclusively associated with people involved in police altercations.” Id. ¶
40. The complaint further alleges that Roell exhibited all of the obvious signs of excited
delirium to an officer trained in the condition - he was partially nude, sweaty, obviously
agitated, engaging in bizarre behaviors, and exhibiting paranoia, fear and/or hallucinations.
Id. ¶ 40. The complaint alleges that failing to recognize the signs of excited delirium and
failing to have appropriate medical personnel standing by puts a person suffering from
excited delirium in serious risk of death. Id.
Nancy Roell, the executrix of Gary Roell’s estate, filed suit against the Hamilton
County Board of Commissioners, Hamilton County Sheriff Jim Neil, and Deputies
Huddleston, Alexander and Dalid pursuant to 42 U.S.C. § 1983. The complaint alleges that
Huddleston, Alexander, and Dalid used excessive force to effectuate the arrest of Gary
Roell and that each of them failed to protect Roell from the other’s use of excessive force.
The complaint also alleges that the Sheriff’s Department ratified the deputies’ conduct by
failing to discipline or counsel them for their conduct in causing Roell’s death. The
complaint further alleges that Hamilton County was deliberately indifferent to the need to
adequately train deputies in safely dealing with persons suffering from excited delirium and
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mental illnesses. The complaint also alleges that the Defendants intentionally discriminated
against Roell, or failed to reasonably accommodate Roell, in violation of the Americans
With Disabilities Act by using excessive force against him because of his disability. Finally,
the complaint asserts state law claims for wrongful death and assault and battery.
The Defendants filed an answer (Doc. No. 7) and, with leave of Court, a third-party
complaint against Nancy Roell, in her individual capacity and as the guardian of Gary Roell,
Sr., for contribution and/or indemnification. Doc. No. 24. The Third-Party Complaint
alleges that Nancy Roell knew, in the weeks leading up to Gary Roell’s death, that his
mental condition was deteriorating but that she nevertheless failed to take adequate
measures to protect him. Moreover, the Third-Party Complaint alleges, Nancy Roell knew
at the time she went to New Jersey and left Gary Roell alone, that he would not seek
medical care for himself and that he presented a danger to himself and others. The ThirdParty complaint alleges, therefore, that Nancy Roell violated her duty under Ohio Rev.
Code § 2111.13 as Gary Roell’s guardian to protect to her ward.
The Third-Party
Complaint alleges that Nancy Roell’s conduct in allegedly failing to protect Gary Roell
constitutes negligence per se and was the proximate cause of Gary Roell’s death. ThirdParty Complaint ¶¶ 8-18. Consequently, the Third-Party Complaint alleges that Nancy
Roell is liable to Defendants for contribution pursuant to Ohio Rev. Code § 2307.23 for
contribution and/or indemnity for damages caused by Gary Roell’s death.
Nancy Roell now moves the Court to dismiss the Third-Party Complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief.
Roell contends that 42 U.S.C. § 1983 does not provide for a right of contribution from
alleged joint tortfeasors. Moreover, she posits a number of policy reasons why it would be
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inappropriate and inadvisable to hold guardians liable for contribution or indemnity in cases
such as this one.
II. Rule 12(b)(6) Standard of Review
A motion to dismiss for failure to state a claim operates to test the sufficiency of the
complaint. The court must construe the complaint in the light most favorable to Plaintiff,
and accept as true all well-pleaded factual allegations. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.
1983). The court need not accept as true legal conclusions or unwarranted factual
inferences. Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998).
The complaint, however, must contain more than labels, conclusions, and formulaic
recitations of the elements of the claim. Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295 (6th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
factual allegations of the complaint must be sufficient to raise the right to relief above the
speculative level. Id. Nevertheless, the complaint is still only required to contain a short,
plain statement of the claim indicating that the pleader is entitled to relief. Id. (citing
Erickson v. Pardus, 551 U.S. 89, 93 (2007)). Specific facts are not necessary and the
pleader is only required to give fair notice of the claim and the grounds upon which it rests.
Id. To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). Mere conclusions, however,
are not entitled to the assumption of truth. Id. at 678-89. A claim is facially plausible if it
contains content which allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 678. Plausibility is not the same as probability,
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but the complaint must plead more than a possibility that the defendant has acted
unlawfully.
Id.
If the complaint pleads conduct which is only consistent with the
defendant’s liability, it fails to state a plausible claim for relief. Id.
III. Analysis
Defendants in this case seek contribution or indemnity against Nancy Roell for her
alleged negligence in leaving Gary Roell unattended in the deteriorating mental state he
was experiencing at the time of the incident leading to his death. They contend, therefore,
that Nancy Roell should share in any damages awarded against them pursuant to the
claims alleged by Gary Roell’s estate.
Under Rule 14 of the Federal Rules of Civil Procedure, a claim for contribution
against a third-party defendant must be based on the plaintiff’s claim against the defendant
because the defendant is attempting to transfer his liability to the third-party defendant. 6
Wright, et al., FEDERAL PRACTICE & PROCEDURE § 1446. In other words, the third-party
defendant must be liable to the plaintiff under the same cause of action the plaintiff asserts
against the defendant. See American Zurich Ins. Co. v. Cooper Tire & Rubber Co., 512
F.3d 800, 805 (6th Cir. 2008) (“[A] defendant’s claim against a third-party defendant cannot
simply be an independent or related claim, but must be based upon the original plaintiff’s
claim against the defendant.”); Calbace v. VSE Corp., 914 F. Supp.2d 1145, 1159
(D.Hawaii 2012) (“In short, there is no right of contribution where the injured person has no
right of action against the third party defendant.”) (internal quotation marks omitted).
First, the Court concludes that § 1983 does not provide a right of contribution to a
defendant against a third-party. The Sixth Circuit Court of Appeals has not specifically
ruled on this issue. However, in Northwest Airlines v. Transport Workers Union of Am., 451
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U.S. 77 (1981), the Supreme Court cautioned against implying a right of contribution into
federal statutes. The Court discussed several factors in determining whether a federal
statute implies a right of contribution among co-defendants. The absence of an express
statutory provision providing a right of contribution is a significant indication that no such
right should be implied. Id. The court should also consider whether the statute was
enacted for the special benefit of the class of which the party seeking contribution is a
member. Id. at 92. Finally, the court should consider whether the legislative history of the
statute indicates an intent to provide a right of contribution. Id. at 94.
In Northwest Airlines, an employer sought contribution from a union for Title VII and
Equal Pay Act (“EPA”) violations caused by the employer’s adherence to discriminatory
wage rates demanded by the union in the collective bargaining agreement. The employer
felt that the union bore some responsibility to share in paying the damages for causing it
to discriminate against the plaintiff class. The Court, however, concluded that no right of
contribution could implied into either Title VII or the EPA: neither statute expressly provided
for a right of contribution, the employer was not a member of the class which Title VII and
the EPA were enacted to benefit, and the legislative history did not indicate an intent to
provide a right of contribution. Id. at 91-94.
In this case, analysis of the Northwest Airlines factors indicates that § 1983 does not
provide a right of contribution to a defendant against an alleged joint tortfeasor. Section
1983 does not specifically provide for a right of contribution.1 Additionally, persons acting
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Section 1983 states in its entirety:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
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under the color of state law are not a member of the class § 1983 was intended to benefit.
Section 1983, rather, was intended to benefit persons who suffer a deprivation of their
constitutional rights at the hands of persons acting under color of state law. See, e.g.,
Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978)(“The policies underlying § 1983
include compensation of persons injured by deprivation of federal rights and prevention of
abuses of power by those acting under color of state law.”). Finally, Defendants have not
directed the Court to any legislative history of § 1983 indicating congressional intent to
provide a right of contribution among defendants. In other words, even a cursory review
and analysis of the Northwest Airlines factors demonstrates that § 1983 does not provide
a defendant with an implied right of contribution against a third-party.
Additionally, contrary to Defendants’ position,42 U.S.C. § 1988(a) does not apply to
import into § 1983 a right of contribution from state law.
Section 1988(a) permits
consideration of state law “in a § 1983 claim only where there is no rule of federal law on
point and state law is consistent with the Constitution and laws of the United States.”
Williams v. Leatherwood, 258 Fed. Appx. 817, 823 (6th Cir. 2007). As indicated by the
discussion just concluded, any state law that would permit a right of contribution against
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983.
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a third-party under § 1983 would be inconsistent with the text and intent of § 1983. In any
event, according to the Court’s research, even Ohio law does not permit contribution in §
1983 cases. Medina County Agr. Soc. v. Swagler, 518 N.E.2d 589, 592 (Ohio Ct. App.
1987).
Second, assuming that 42 U.S.C. § 1983 does provide a right of contribution to a
defendant against a third-party, Nancy Roell nevertheless cannot be held liable for
contribution to the Defendants for Gary Roell’s death. As just stated, a defendant’s claim
for contribution against a third-party must be based on the plaintiff’s claim against the
defendant. In this case, Nancy Roell cannot be held liable to Gary Roell’s estate for the
constitutional violations alleged in the complaint. A private citizen, unless she acted in
concert with a state official, is not a “state actor,” and hence does not act “under color of
state law” for purposes 42 U.S.C. § 1983. Tahfs v. Proctor, 316 F.3d 584, 590-91 (6th Cir.
2003). Here, Defendants do not allege, nor do the facts in the Third-Party Complaint
indicate, that Nancy Roell was a state actor or that she acted in concert with state actors
in causing the alleged constitutional deprivation leading to Gary Roell’s death. Indeed,
according to the Third-Party Complaint, she was not even present within the State of Ohio
when the alleged constitutional deprivation occurred. Consequently, for all of the reasons
stated above, Defendants’ claim for contribution against Nancy Roell under 42 U.S.C. §
1983 fails as a matter of law.
Third, Defendants’ claim for contribution against Nancy Roell with respect to
Plaintiff’s ADA claim fails for somewhat similar reasons. Plaintiff, on behalf of Gary Roell,
brings her disability discrimination claim pursuant to Title II of the ADA. Title II of the ADA
prohibits discrimination based on disability in the provision of public services. Johnson v.
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City of Saline, 151 F.3d 564, 569 (6th Cir. 1998); 42 U.S.C. § 12132. Title II applies only
to “public entities,” that is, to state or local governments or departments or agencies of state
or local governments. 42 U.S.C. § 12132; 42 U.S.C. § 12131(1). Title II liability cannot be
imposed against individuals. Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98,
107 (2nd Cir. 2001)(collecting cases); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005
n.8 (8th Cir. 1999); Key v. Grayson, 163 F. Supp.2d 697, 715 (E.D.Mich. 2001). Since
Nancy Roell is an individual, she cannot be liable for contribution to the Defendants under
the ADA. Therefore, Defendants’ claim for contribution with respect to Plaintiff’s ADA claim
fails as a matter of law.
Fourth, Nancy Roell cannot be liable for contribution to Defendants for Plaintiff’s
state law causes of actions. As mentioned, Plaintiff asserts claims against all of the
Defendants for wrongful death and against the individual deputies for assault and battery.
Nancy Roell, however, cannot be held liable for contribution to Defendants for damages
which might be owed to Gary Roell’s estate for these torts based on her alleged negligent
conduct. See American Zurich, 512 F.3d at 805 (third-party defendant’s liability must be
based on plaintiff’s original claim against the defendant). Because the Defendants are a
political subdivision and/or employees of a political subdivision, they are entitled to
immunity under Ohio law for Gary Roell’s death unless Plaintiff demonstrates that the
County acted willfully and wantonly, and that the individual Defendants acted wantonly and
recklessly, in causing his death. Anderson v. City of Massillon, 983 N.E.2d 266, 274 (Ohio
2012). These standards of misconduct require proof of culpability greater than mere
negligence. Wentworth v. Coldwater, No. 10-14-18, 2015 WL 1618923, at *8 (Ohio Ct.
App. Apr. 13, 2015). Since a defendant’s claim for contribution against a third-party must
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be based on the plaintiff’s underlying claim against the defendant, and since in this case
Plaintiff’s state law claims require proving that the Defendants acted with culpability greater
than negligence, Nancy Roell cannot be liable to Defendants for contribution based on her
alleged negligent conduct. See, e.g. Grange Mut. Cas. Co. v. Hall, No. 91AP-1016, 1992
WL 276607, at *2 n.2 (Ohio Ct. App. Apr. 14, 1992) (“[I]n order for there to be a right to
contribution, the injured party must have a possible remedy against both the party seeking
contribution and the party from whom contribution is sought.”). Moreover, as to Plaintiff’s
assault and battery claim, an intentional tortfeasor has no right of contribution from other
tortfeasors. Ohio Rev. Code § 2307.25(A); Eysoldt v. Proscan Imaging, No. C–110138,
2011 WL 6885346, at *2 (Ohio Ct. App. Dec. 28, 2011)(stating that “an intentional
tortfeasor may not profit by means of contribution from a fellow wrongdoer”); Love v. City
of Port Clinton, 524 N.E.2d 166, 168 (Ohio 1988)(assault and battery is an intentional tort).
Consequently, the Defendants have no right of contribution against Nancy Roell for any
damages which might be awarded to Gary Roell’s estate pursuant to the state law claims.
Fifth and finally, Defendants’ claim against Nancy Roell for indemnity fails as a
matter of law. A claim for indemnity must be based on an express or implied contract
between the defendant and a third-party. Allstate Ins. Co. v. U.S. Associates Realty, Inc.,
464 N.E.2d 169, 173 (Ohio Ct. App.1983). Defendants’ indemnity claim fails because
Defendants fail to allege that there was an express or implied contract of indemnity
between them and Nancy Roell.
Conclusion
For the reasons stated above, Plaintiff/Third Party Defendant Nancy Roell’s motion
to dismiss Defendants’ Third-Party Complaint (Doc. No. 33) is well-taken and is GRANTED.
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In light of that conclusion, the motions to file amicus curiae briefs (Doc. Nos. 38 & 39) are
MOOT.
IT IS SO ORDERED
Date June 8, 2015
s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge
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