Surface et al v. Conklin et al

Filing 12

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Doc. 5 ). Specifically, the Court dismisses all claims as to Defendant Adamson, Defendant Dickey, and Defendant the City of Fairfield. Should Plaintiffs chose to file a motion for leave to amend, they shall do so within 21 days of the date of this Order. Signed by Judge Timothy S. Black on 5/20/2015. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JEFFREY P. SURFACE, et al.,
Plaintiffs,
vs.
OFFICER SCOTT CONKLIN, et al.,
Defendants.

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Case No. 1:15-cv-40
Judge Timothy S. Black

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS (Doc. 5)
This civil action is before the Court on Defendants’ motion to dismiss (Doc. 5), 1
and the parties’ responsive memoranda (Docs. 10, 11).
I.

FACTS ALLEGED BY THE PLAINTIFFS

For purposes of this motion to dismiss, the Court must: (1) view the amended
complaint in the light most favorable to Plaintiffs; and (2) take all well-pleaded factual
allegations as true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
Plaintiffs filed this lawsuit on behalf of their adult son, Caleb Surface. Caleb was
shot and killed by Fairfield Police Officer, Scott Conklin, after the Plaintiff-father pulled
his own gun on Caleb and called for the police to protect him. Officer Conklin gives an
unrebutted account that Caleb threatened him with a gun and when Caleb was told to put
his hands up, instead reached into his coat and pulled out an object that turned out to be a
cordless phone.
1

Defendants include Officer Scott Conklin (in his individual and official capacity), Chief Michael
Dickey (in his individual and official capacity), Officer Todd Adamson (in his individual and official
capacity), and the City of Fairfield.

II.

STANDARD OF REVIEW

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)
requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a
legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative level[.]” Id.
Accordingly, in order “[t]o survive 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.’” Iqbal, 556 U.S. at 678. A claim is plausible where “plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
2

“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief,’” and shall be dismissed. Id. (citing Fed. Rule Civ. Proc.
8(a)(2)).
III.
A.

ANALYSIS

Federal Claims against Officer Adamson

Officer Todd Adamson was the first responder to the scene following a report of
domestic violence from Plaintiff-father Jeffrey Surface at his residence. (Doc. 1 at ¶ 1).
“[U]pon Adamson’s arrival, the Decedent had already left the Surface residence.” (Id. at
¶ 14). The complaint sets forth no allegations that Adamson used excessive force against
Caleb Surface or that he was present at the location where Caleb was allegedly shot.
Plaintiffs allege that Adamson failed or refused to communicate to the arriving
officers that the “weapon” was secured and Caleb was unarmed. (Doc. 1 at ¶¶ 14, 15).
Accordingly, Plaintiffs claim that Adamson failed to act in a manner to prevent the use of
excessive force and thus may be held liable because Adamson: (1) observed or had
reason to know that excessive force would be or was being used; and (2) had both the
opportunity and the means to prevent the harm from occurring. Turner v. Scott, 119 F.3d
425, 429 (6th Cir. 1997). Specifically, Plaintiffs maintain that Adamson had the
opportunity and means to prevent Conklin from using excessive force, by communicating
via radio that Caleb was unarmed or that the weapon was secured.

3

Plaintiffs argue that “[A]damson knew Caleb Surface was unarmed when
Adamson told Plaintiff Jeffrey Surface to secure the weapon.” (Doc. 1 at ¶ 14).
However, the complaint actually states that “[u]pon Adamson’s arrival, the Decedent had
already left the Surface residence. Defendant Adamson was met at the door by Surface,
who was in possession of his handgun. Defendant Adamson told Surface to ‘secure the
weapon’ and then proceeded to radio to the other officers in the area that the Decedent
had left the Surface residence.” (Id.) The complaint does not allege what Adamson
“knew” regarding Caleb’s status as armed or unarmed, and, accordingly, such arguments
may not be considered. Based on the complaint, it is unclear whether or not Adamson
knew that Caleb did not have a weapon. Moreover, despite the fact that the weapon
belonging to Jeffrey Surface was secure, it is entirely possible that Caleb could have had
another weapon. Therefore, Adamson could not have radioed that Caleb did not have a
weapon, because Adamson did not know whether Caleb had a weapon. Plaintiffs cannot
speculate as to what Adamson knew or did not know.
Mere proximity to the unfolding events is not a sufficient basis for finding that
Adamson participated in a constitutional deprivation. “Generally speaking, a police
officer who fails to act to prevent the use of excessive force may be held liable when
(1) the officer observed or had reason to know that excessive force would be or was being
used, and (2) the officer had both the opportunity and the means to prevent the harm from
occurring.” Turner, 119 F.3d at 429. There are no cases in the Sixth Circuit where a
nonsupervisory officer who was not present at the scene or did not actively participate in
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a constitutional deprivation was held liable for the failure to prevent the constitutional
violation from occurring. Smoak v. Hall, 460 F.3d 768, 785 (6th Cir. 2006). Here, it is
undisputed that Adamson was not present at the scene where the shooting of Caleb
Surface occurred and did not actively participate in the alleged constitutional deprivation.
Therefore, Plaintiffs fail to state a federal claim against Officer Adamson.
B.

Claims against Chief Dickey

Chief Dickey was sued in both his individual and official capacity. Defendants
maintain that all claims against Chief Dickey should be dismissed, because Plaintiffs
have failed to plead any facts that support the assertion that he violated Caleb’s rights or
that he was responsible for Caleb’s wrongful death. The sole allegations in Plaintiffs’
complaint are that Dickey is liable under a theory of respondent superior.
Liability under Section 1983 “must be based on more than respondeat superior, or
the right to control employees.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
To succeed on claims of liability for failure to supervise, a plaintiff must allege facts
showing the defendant “either encouraged the specific incident of misconduct or in some
other way directly participated in it.” Id. “At a minimum, a Section 1983 plaintiff must
show that a supervisory official at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Stated differently, where individual
defendants are alleged to be liable based on the acts of others who they supervise, there

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must be a “direct causal link between the acts of individual [employees] and the
supervisory defendants.” Hays v. Jefferson County, 668 F.2d 879, 872 (6th Cir. 1982). 2
Plaintiffs maintain that the claims against Dickey clearly demonstrate a failure to
train, supervise, and control the conduct of Defendants Adamson and Conklin. (Doc. 1 at
¶ 38). Plaintiffs do not allege that Dickey was involved personally in the shooting of
Caleb Surface, nor that he was the decision-maker with respect to Caleb’s shooting.
Plaintiffs’ reliance on a theory of respondeat superior is not permitted. Moreover,
Plaintiffs have not alleged any facts to support that Chief Dickey implicitly or explicitly
authorized, approved, or knowingly acquiesced in the alleged unconstitutional conduct.
Since there is no evidence that Dickey engaged in any specific constitutional violations or
authorized, approved, or knowingly acquiesced in any unconstitutional conduct, the
federal claims against Dickey in his individual capacity cannot stand.
A Section 1983 action against a city official in his or her official capacity “is
treated as an action against the City entity itself.” Barber v. City of Salem, Ohio, 953
F.2d 232, 237 (6th Cir. 1992). “Under Section 1983, a municipality can only be held
liable if the plaintiff demonstrates that the injury suffered was a direct result of the city’s
official policy or custom.” Slusher v. Carson, 540 F.3d 449, 456-57 (6th Cir. 2008).
Here, the complaint is devoid of any allegations that Caleb’s death was the result
of an official policy or custom or that Chief Dickey directly participated in or in any way
2

“For individual liability on a failure-to train or supervise theory, the defendant supervisor must be found
to have ‘encouraged the specific incident or misconduct or in some other way directly participated in it.’”
Essex v. County of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013).
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encouraged Officers Adamson and Conklin to engage in the alleged unconstitutional
conduct. Accordingly, the allegations against Chief Dickey in both his individual and
official capacity are insufficient as a matter of law.
C.

Federal Claims against the City of Fairfield

“Under Section 1983, a municipality can only be held liable if the plaintiff
demonstrates that the injury suffered was a direct result of the…official policy or
custom.” Beckett v. Ford, 384 F. App’x 435, 453 (6th Cir. 2010). 3
“[O]ur first inquiry in any case alleging municipal liability under Section 1983 is
the question whether there is a direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” City of Canton, Ohio v. Harris, 489 U.S.
378, 385 (1989). “A municipality can be liable under Section 1983 only where its
policies are the “moving force [behind] the constitutional violation.” Id. at 389. To set
forth a cognizable Section 1983 claim against a municipality, a plaintiff must allege that:
(1) agents of the municipality, while acting under color of state law, (2) violated the
plaintiff’s constitutional rights, and (3) that a municipal policy or policy of inaction was
the moving force behind the violation. Id. at 379.
Absent written evidence of the policy, plaintiffs can show the city had a custom of
such practices (inadequate training and supervision) by providing “proof of the
knowledge of policymaking officials and their acquiescence in the established practice.”
3

Under certain circumstances, a municipality can be held liable in civil rights actions under Section 1983
for constitutional violations resulting from its failure to train municipal employees. 42 U.S.C. § 1983.”
City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).
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Memphis, Tenn. Area Local, Am. Postal Wokers Union v. City of Memphis, 361 F.3d 898,
902 (6th Cir. 2004). The custom “must encompass ‘[d]eeply embedded traditional ways
of carrying out [government] policy.’” Doe v. Claiborne Cnty. Tenn., 103 F.3d 495, 507
(6th Cir. 1997). Where, as here, a plaintiff cannot point to a written or other formally
adopted policy, he must show “prior instances of unconstitutional conduct demonstrating
that the [city] has ignored a history of abuse and was clearly on notice that the training in
this particular area was deficient and likely to cause injury.” Fisher v. Harden, 398 F.3d
837, 849 (6th Cir. 2005).
Plaintiffs fail to identify policies or practices of the City of Fairfield. Rather,
Plaintiffs summarily conclude “[t]he allegations are clear there was an intentional failure
to train the officers in question.” (Doc. 10 at PageID 76). 4 Plaintiffs maintain that the
evidence of alleged individual officer misconduct is sufficient to maintain that there is a
City of Fairfield policy condoning such conduct.
[W]ithout some evidence of municipal policy or custom independent
of the police officer’s misconduct, there is no way of knowing whether
the city is at fault. To infer the existence of a city policy from the
isolated misconduct of a single, low-level officer, and then to hold the
city liable on the basis of that policy, would amount to permitting
precisely the theory of strict respondeat superior liability rejected in
Monell.

4

“A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a
failure to train.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011). The failure to train must amount to
a “deliberate indifference to the rights of persons with whom the [untrained employees] come into
contact.” Id. Usually a plaintiff must establish “deliberate indifference” by showing “[a] pattern of
similar constitutional violations by untrained employees.” Id. at 1360. Plaintiffs must allege facts
sufficient to show that there was a “clear and persistent pattern of unconstitutional conduct by municipal
employees.” D’Ambrosio v. Marino, 747 F.3d 378, 387 (6th Cir. 2014).
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City of Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985). Accordingly, federal claims
against the City of Fairfield fail as a matter of law.
D.

Assault and Battery Claims

Plaintiffs also allege state law claims for assault and battery. The complaint
alleges that “Defendants Adamson and Conklin acted jointly in their response to the 911
call, as well as their interaction with Caleb J. Surface on the evening of January 18,
2014.” (Doc. 1 at ¶ 1). “The combined actions of these two Defendants led Defendant
Conklin, unlawfully and without cause to shoot and kill Caleb Surface.” (Id. at ¶ 2).
Ohio Revised Code Section 2305.111(B) states in pertinent part: “except as
provided in section 2305.115 of the Revised Code and subject to division (C) of this
section, an action for assault or battery shall be brought within one year after the cause of
the action accrues.” Pursuant to Ohio Revised Code Section 2305.111(B)(1), the cause of
action accrues on “the date on which the alleged assault or battery occurred.” Plaintiffs’
complaint was filed on January 20, 2015. The cause of action for assault and battery
accrued on January 18, 2014. Therefore, Defendants argue that the claims are untimely.
Plaintiffs maintain that they could not have filed the complaint on January 18
(which was a Sunday) or January 19 (which was Martin Luther King Day), and therefore
the January 20, 2015 filing was timely. The Court agrees.
Pursuant to Federal Rule of Civil Procedure 6(a)(1)(C), when computing a time
period, the last day is included, “but if the last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next day that is not a Saturday,
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Sunday or legal holiday.” DeJohn v. Lerner, Sampson & Rothfuss, No. 1:12cv1705,
2012 U.S. Dist. LEXIS 175345, at *6 (N.D. Ohio Dec. 11, 2012) (finding that Plaintiffs’
FDCPA claims were not barred by the one-year statute of limitations where the statute
ran on a Sunday). “[O]nly when the period of time is less than 11 days are intermediate
Saturdays, Sundays, and legal holidays excluded. Because the applicable statute-oflimitations period is one year, the intermediate Saturdays, Sundays, and legal holidays are
included in computing the limitations period, unless one of those days is the last day of
the time period.” Martin v. Louisville Metro Gov’t, No. 3:08cv521, 2009 U.S. Dist.
LEXIS 78324, at *10 (W.D. Ky. Sept. 1, 2009). 5
Accordingly, Plaintiffs’ assault and battery claims are not barred by the statute of
limitations.
E.

Individual Defendant Immunity

The doctrine of qualified immunity “shields government officials performing
discretionary functions from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011). Where
qualified immunity is raised in a motion to dismiss, “the court must determine only
whether the complaint ‘adequately alleges the commission of facts that violated clearly

5

Professor Wright has commented that “it is difficult to perceive how a legitimate governmental interest
would be prejudiced by application of the Rule 6 exclusion of final Saturdays, Sundays, and legal
holidays to federal statutes of limitations.” 4A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1163 at 469. See also Bartlik v. United States DOL, 62 F.3d 163, 166 (6th Cir. 1995) (if
the statute of limitations expires on a weekend or holiday, then it extends to the next business day).
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established law.’” Rondigo, LLC v. Township of Richmond, 641 F.3d 673, 681 (6th Cir.
2011).
The individual Defendants maintain that, as employees of their respective political
subdivisions, they are immune from this lawsuit. Ohio Revised Code Section
2744.03(A)(6) states that an employee of a political subdivision is immune from suit
unless one of the following applies:
(a) The employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner; or
(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code.
The plain meaning of this statute is to deny political subdivision immunity conferred by
way of the state statute for federal claims. The statute does not prevent a political
subdivision from asserting the immunity defense for state law claims. Ward v. City of
Cuyahoga, 721 F.Supp.2d 677 (N.D. Ohio 2010). In order for an exception to immunity
to apply, the acts must be undertaken “with malicious purpose, in bad faith, or in a
wanton or reckless manner.” Ohio Rev. Code § 274403(A)(6). Plaintiffs allege no facts
that the acts of Adamson or Dickey were done with malicious purpose, in bad faith, or in
a wanton or reckless manner. 6 Moreover, Adamson and Dickey were not present at the
scene and were not involved in the decision-making process regarding Caleb Surface.

6

“Reckless conduct” is characterized by the conscious disregard of or indifference to a known or obvious
risk of harm to another that is unreasonable under the circumstances and is substantially greater than
negligent conduct. Anderson v. Massillon, 983 N.E.2d 266, 273 (Ohio 2012).
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Accordingly, Defendants Adamson and Dickey are entitled to immunity for all
state law claims asserted against them in their individual capacities.
F.

State Law Claims Against City of Fairfield

Ohio Revised Code Section 2744 sets forth a three-tiered analysis for determining
whether a political subdivision is immune from liability for injury or loss to property.
Rankin v. Cuyahoga Co. Dept. of Children Serv., 889 N.E.2d 521, 523-24 (Ohio 2008).
Ohio Revised Code Section 2744.02(A)(1) states in pertinent part that “[e]xcept as
provided in division (B) of this section, a political subdivision is not liable in damages in
a civil action for injury, death, or loss to person or property allegedly caused by an any
act or omission of the political subdivision or an employee of the political subdivision in
connection with a governmental or proprietary function.”
Before determining whether a political subdivision is entitled to immunity from a
civil action, a court must determine whether the political subdivision was engaged in a
governmental or proprietary function when the alleged tort occurred. Ohio Rev. Code
§ 2744.02(A)(1). A “governmental function” is “[t]he provision or nonprovision of
police, fire, emergency medical, ambulance, and rescue services or protection.” Ohio
Rev. Code § 2744.01(c)(2)(a). Therefore, the allegations against the City of Fairfield
form a function for which Fairfield is ordinarily entitled to immunity.
However, the immunity afforded a political subdivision is not absolute, but is
subject to the five exceptions to immunity listed in Ohio Revised Code Section
2744.02(B). Therefore, once immunity is established under Ohio Revised Code Section
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2744.02(A)(1), the second tier of analysis is whether any of the five exceptions to
immunity in subsection B apply:
(1)

…, political subdivisions are liable for injury, death, or loss to person or
property caused by the negligence operation of any motor vehicle by their
employees when her employees are engaged within the scope of their
employment and authority.

(2)

…political subdivisions are liable for injury, death, or loss to person or
property caused by the negligent performance of acts by their employees
with respect to proprietary functions of the political subdivisions.

(3)

…political, subdivisions are liable for injury, death, or loss to person or
property caused by their negligent failure to keep public roads[.]

(4)

…, political subdivisions are liable for injury, death, or loss to person or
property that is caused by the negligence of their employees and that occurs
within or on the grounds of, and is due to physical defects within or on the
grounds of, buildings that are used in connection with the performance of a
governmental function[.]

(5)

…a political subdivision is liable for injury, death, or loss to person or
property when civil liability is expressly imposed upon the political
subdivision by a section of the Revised Code[.]

Rankin, 889 N.E.2d at 525.
Finally, under the third tier of analysis, assuming immunity is pierced under one of
the five above exceptions, immunity can be reinstated if the political subdivision can
successfully argue that any of the defenses contained in Ohio Revised Code Section
2744.03 apply. Rankin, 889 N.E.2d at 525. Ohio Revised Code Section 2744.03 states in
pertinent part that the agency is immune from civil lawsuit if the following apply:
(1)

The political subdivision is immune…if the employee involved was
engaged in the performance of a judicial, quasi-judicial, prosecutorial,
legislative, or quasi-legislative function.
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(2)

The political subdivision is immune from liability if the conduct of the
employee involved, other than negligence conduct, that gave rise to the
claim of liability was required by law or authorized by law, or if the
conduct of the employee involved that gave rise to the claim of liability was
necessary or essential to the exercise of powers of the political subdivision
or employee.

(3)

The political subdivision is immune from liability if the action or failure to
act by the employee involved that gave rise to the claim of liability was
within the discretion of the employee with respect to policy-making,
planning, or enforcement powers by virtue of the duties and responsibilities
of the office or position of the employee.

Ohio Revised Code § 2744.03(A).
None of the exceptions to immunity are applicable. See, e.g., Smith v. City of
Akron, 476 F. App’x 67, 71 (6th Cir. 2012) (applying Ohio law, recognizing that the
provision of police services is a governmental function and that Ohio law immunizes City
for tort claims). Accordingly, Fairfield is immune from liability on Plaintiffs’ state law
claims.
G.

Plaintiffs’ Motion to Amend

In the alternative, Plaintiffs seek leave to amend the complaint. Courts are
encouraged to freely grant leave to amend “when justice so requires.” Fed. R. Civ. P.
15(a)(2). A motion to amend should be denied, however, “if the amendment is brought in
bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party,
or would be futile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995). “Amendment
of a complaint is futile when the proposed amendment would not permit the complaint to
survive a motion to dismiss.” Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005).
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While it appears that amendment would be futile, the Court cannot definitively assess
futility, because Plaintiffs fail to explain in any detail how they would amend the
complaint. Accordingly, Plaintiffs can seek leave to amend, but leave may or may not be
granted.
IV.

CONCLUSION

Accordingly, for these reasons, Defendants’ motion to dismiss (Doc. 5) is
GRANTED IN PART and DENIED IN PART as explained in this Order. 7 Should
Plaintiffs chose to file a motion for leave to amend, they shall do so within 21 days of the
date of this Order.
IT IS SO ORDERED.
Date: 5/20/15

s/ Timothy S. Black
Timothy S. Black
United States District Judge

7

Specifically, the Court dismisses all claims as to Defendant Adamson, Defendant Dickey, and Defendant
the City of Fairfield.
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