The Estate of William Overbey et al v. Thorp et al

Filing 58

OPINION AND ORDER granting 49 Motion for Summary Judgment; denying 55 Motion to Strike. Signed by Magistrate Judge Terence P Kemp on 4/10/2015. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
The Estate of William Overbey,
et al.,

:

Plaintiffs,

:

v.

Case No. 2:13-cv-0671

:

The Licking County, Ohio,
:
Sheriff Randy Thorp, et al.,
Defendants.

Magistrate Judge Kemp

:
OPINION AND ORDER

On July 12, 2011, while being held in the Licking County
Jail, William Overbey committed suicide by jumping off a secondstory walkway.

His estate and his surviving spouse, Christina

Overbey, filed this civil action against Licking County Sheriff
Randy Thorp, Licking County itself, and Tanner Vogelmeier, a
deputy sheriff who was on duty when Mr. Overbey died.

Plaintiffs

assert that each defendant is legally responsible for Mr.
Overbey’s death.

The case has been referred to the Magistrate

Judge for all purposes with the consent of the parties, and is
currently set for trial on June 1, 2015.
On January 14, 2015, all defendants moved for summary
judgment.

(Doc. 49).

Under Local Civil Rule 7.2(a)(2),

Plaintiffs were required to respond on or before February 9,
2015.

They did not.

Rather, they filed a motion for an

extension of time to respond on February 12, 2015, but because
they did not solicit the consent of the defendants to the
extension (something required by Local Civil Rule 7.3), the
motion was denied without prejudice.

Two days afterward, they

filed, without leave of Court, their response, which, by then,
was eleven days late.

Those circumstances led Defendants to file

a motion to strike the

response in opposition to the motion for

summary judgment.

(Doc. 55).

Both the motion for summary

judgment and the motion to strike have been fully briefed.

For

the reasons set forth below, the motion to strike Plaintiffs’
response in opposition to the motion for summary judgment will be
denied, and the motion for summary judgment will be granted.
I.

The Motion to Strike

Before discussing the merits of the summary judgment motion,
the Court takes a brief moment to resolve the motion to strike.
Everyone agrees that Plaintiffs’ opposing memorandum was not
filed on time.

Plaintiffs argue that they miscalculated their

response time by referring to the Local Civil Rules for the
Northern District of Ohio, and they ask the Court to excuse their
failure so that the case can be decided on its merits.
This Court has substantial discretion to excuse a late
filing.

Without commenting on whether Plaintiffs’ deviance from

the time frames and procedures set out in Local Civil Rule 7.3
constitutes excusable neglect, which, under Fed.R.Civ.P. 6(b),
may justify a late filing, the Court agrees that it is better to
resolve this matter based on briefing from both parties,
especially since the short delay in filing Plaintiffs’ brief did
not prejudice the Defendants.

Even if the response were

stricken, the Court could not grant the summary judgment motion
just because it stood unopposed.

Carver v. Bunch, 946 F.2d 451,

454-55 (6th Cir. 1991)(pursuant to Fed.R.Civ.P. 56, “a party
moving for summary judgment always bears the burden of
demonstrating the absence of a genuine issue as to a material
fact” and “the movant must always bear this initial burden
regardless if an adverse party fails to respond”).

For these

reasons, the motion to strike will be denied, and the Court will
consider Plaintiffs’ arguments about why summary judgment is
inappropriate here.
II. The Facts
2

The following facts appear either in the complaint or other
documents of record.

Because the case is before the Court by way

of summary judgment motion, the Court will, as explained in
Section III, resolve any factual disputes in Plaintiffs’ favor
when stating the material facts of the case (although there are
very few, if any, facts in dispute).
On July 12, 2011, Mr. Overbey was in the Licking County
Justice Center as a pretrial detainee (that is, he had not been
convicted of a crime, but was awaiting further proceedings in his
criminal case).

While working in B-module where Mr. Overbey was

housed that morning, Deputy Timothy Sloane had a conversation
with Mr. Overbey which led him to conclude that Mr. Overbey was
upset.

Mr. Overbey remarked to Deputy Sloane that “things were

falling apart,” and he explained that “he hadn’t had a chance to
speak with his attorney and he was coming up on a trial date, and
he was also upset because he hadn’t had a chance to communicate
with his wife.”

(Sloane Deposition, Doc. 48, at 14-15).

Based

on the conversation, Deputy Sloane placed Mr. Overbey on
“potential suicide risk,” which is also known as SR-P.
Potential suicide risk is one of three levels of suicide
prevention and intervention described in an American Correctional
Association (“ACA”) policy which has been adopted by the Licking
County Justice Center.

The three levels of suicide prevention

and intervention listed in that policy are potential suicide
risk, active suicide risk, and active suicide risk placed in
isolation.

The policy relevant to potential suicide risk states:

Inmates booked into the facility who are upset, have a
previous history of suicide attempts or are deemed to be
a potential suicide risk will be placed on this level of
suicide watch.
The module officer will monitor the
individual on a 10-minute irregular schedule (i.e., 8
min, 6 min., 10 min., etc.). There will be no more than
10 minutes between checks. This will be a visual check
of the individual to make sure there are no problems
occurring.
The status of the individual will be
3

documented on the Suicide Risk log. All non-prescription
medications will be removed from the inmate’s cell/locker
and placed in the module officer’s closet/bathroom. The
officer will dispense the medication in the allotted
amounts per the instructions provided with each
medication. If the potentially suicidal inmate is placed
in isolation, the constant, continuous, uninterrupted
observation is required.
(Doc. 49, Ex. 3. at 5).
After placing Mr. Overbey on potential suicide risk, Deputy
Sloane contacted a mental health worker.

He did so because, as

he testified in his deposition, “[a]nyone placed on suicide risk
will be seeing a mental health professional in order to get
removed from the risk or to be evaluated to be maintained on the
risk.”

(Doc. 48 at 20).

Andy Santos, a mental health social

worker, met with Mr. Overbey later that day.
At 7:00 p.m., Deputy Tanner Vogelmeier began his shift at
the Licking County Justice Center.

Although Deputy Vogelmeier

was not scheduled to work in the facility that day, he covered
the shift for Deputy Wayne Moore, who had to leave work early due
to a family emergency.

At the start of his shift, Deputy

Vogelmeier learned that Mr. Overbey was on potential suicide risk
and that an individual from the facility’s mental health office
had met with Mr. Overbey earlier that day.

Deputy Vogelmeier

began monitoring B-module approximately forty minutes into his
shift, after assisting with “med pass,” during which the jail
nurse dispenses medication to the inmates who require it.
When Deputy Vogelmeier finished assisting with med pass, Mr.
Overbey had just arrived back to B-module after a visit with his
son, Jacob Overbey.
minutes.

That visit lasted approximately thirty

During the visit, Mr. Overbey told his son that he had

been placed “on suicide watch because he was sitting in his cell
crying all day....”

(Jacob Overbey deposition, Doc. 46, at 11).

Jacob also testified that he did not think his father would
4

actually commit suicide, and he did not communicate any concerns
about his father’s mental health or safety to jail officials.
While in B-module, Deputy Vogelmeier monitored Mr. Overbey
visually in increments of ten minutes or less, as required by the
ACA policy, and recorded Mr. Overbey’s status on a suicide risk
log.
B-module has an upper level which is approximately ten to
twelve feet above its lower level.

At approximately 8:40 p.m.,

Mr. Overbey was on the upper level of B-module and was talking to
another inmate, Michael Goler, who was on the telephone with
Jacob.

Deputy Vogelmeier walked up the steps from the lower

level to the upper level in order to speak with Mr. Overbey. As
Deputy Vogelmeier reached the top of the steps, he was stopped by
inmates in the upper level day room, one of whom told Deputy
Vogelmeier that Mr. Overbey was having a rough time.

During that

conversation Deputy Vogelmeier could see Mr. Overbey in his
peripheral vision.

He noticed that Mr. Overbey started to lean

forward, head first, over the metal railing.

As Mr. Overbey

started to go over the railing, Deputy Vogelmeier heard Mr. Goler
yell “no.”

(Doc. 47 at 83).

Deputy Vogelmeier ran toward Mr.

Overbey in an effort to grab onto his legs.

That effort was

unsuccessful; Mr. Overbey went over the railing and hit the floor
of the lower level of B-module head-first.
Deputy Vogelmeier immediately directed everyone to “lock
down” because of the emergency situation, which prompted all of
the inmates to return to their cells.

As he was coming down the

steps, Deputy Vogelmeier used his portable cordless phone to do a
“medical all call” and then dialed the central office to get a
squad and a med flight on standby.

When Deputy Vogelmeier

reached Mr. Overbey, he used his hands to hold Mr. Overbey’s head
still while the rest of Mr. Overbey’s body was shaking.

Deputy

Vogelmeier attempted to talk to Mr. Overbey, but Mr. Overbey did
5

not respond.

Roughly one minute later, Mr. Overbey stopped

shaking and also stopped breathing.

Deputy Vogelmeier started

CPR, giving Mr. Vogelmeier chest compressions and two rescue
breaths using a mask provided to him by Corrections Officer
Engle, who had arrived on the scene from another floor.
Corrections Officer Engle relieved Deputy Vogelmeier on chest
compressions.

Shortly thereafter, a nurse arrived and relieved

Corrections Officer Engle, continuing to administer CPR.

When

the emergency squad arrived, Deputy Vogelmeier told the
paramedics what had happened, and they took over in attending to
Mr. Overbey’s medical needs.

Mr. Overbey was transported to

Licking Memorial Hospital where he was pronounced dead as a
result of his injuries.

The key events were captured on the

jail’s surveillance video.
III. Summary Judgment Standard
Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
dispute.

It may be rendered only when appropriate evidentiary

materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Broad. Sys., Inc., 368 U.S. 464 (1962).

Poller v. Columbia
The moving party bears

the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).

Adickes v. S.H. Kress &

“[I]f the evidence is insufficient to

reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”

Cox v.

Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir.
1995)(citation omitted).

Additionally, the Court must draw all

reasonable inferences from that evidence in favor of the
nonmoving party.

United States v. Diebold, Inc., 369 U.S. 654
6

(1962).

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

Of

course, since “a party seeking summary judgment ... bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
It is with these standards in mind that the instant motion must
be decided.
IV. Discussion
Plaintiffs have brought both federal and state law claims
relating to Mr. Overbey’s suicide while incarcerated as a
pretrial detainee in the Licking County Justice Center.

While

Plaintiffs state in their complaint that their federal claims
arise under 42 U.S.C. §§1983, 1986 and 1988, the briefing on the
federal claims refers only to §1983.

42 U.S.C. §1986 imposes

liability on persons who are aware of and can prevent violations
of 42 U.S.C. §1985, which prohibits certain civil rights
conspiracies.

In order to show a violation of §1986, the

plaintiff must prove a valid claim under 42 U.S.C. §1985.

See,

e.g., Radvansky v. City of Olmstead Falls, 395 F.3d 291, 314-15
(6th Cir. 2005).

Plaintiffs have not pleaded a §1985 claim and,

in any event, as the Court later concludes, they have not
produced sufficient evidence of any constitutional violation to
permit this case to go to the jury, so an extended discussion of
7

§1986 is unnecessary.

42 U.S.C. §1988 provides for an award of

attorney’s fees to prevailing parties (usually plaintiffs).
Because summary judgment will be entered in favor of Defendants,
42 U.S.C. §1988 does not come into play here either.
Consequently, the Court will analyze the federal law issue by
deciding if there are triable issues of fact on the §1983 claim.
A. Deliberate Indifference Under 42 U.S.C. §1983
Plaintiffs assert claims under 42 U.S.C. §1983 for
deliberate indifference to Mr. Overbey’s medical and
psychological needs.

That statute provides, in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
... subjects, or causes to be subjected, any citizen of
the United States ... 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....
In order to state a claim under 42 U.S.C. §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.”

Salehpour v. University of Tenn., 159 F.3d 199, 206 (6th

Cir. 1988)(internal quotations and citations omitted).

The

status of each of the defendants as a “person acting under color
of state law” is not disputed.

Consequently, the key issue is

whether, under the facts set forth above, a reasonable jury could
find that Mr. Overbey’s constitutional rights were violated in
connection with his death.
In this case, Plaintiffs’ claim is rooted in a prisoner’s
Eighth Amendment right to be free from cruel and unusual
punishment.

Although the Eighth Amendment does not apply to

pretrial detainees like Mr. Overbey, pretrial detainees are
guaranteed the right to adequate medical and psychological

8

treatment through the due process clause of the Fourteenth
Watkins v. City of Battle Creek, 273 F.3d 682, 685-86

Amendment.

(6th Cir. 2001).

In order to establish that a pretrial detainee

has been deprived of the right to adequate medical treatment, he
or she must demonstrate that “(1) ‘the deprivation alleged [is],
objectively, sufficiently serious’ such that the inmate ‘is
incarcerated under conditions posing a substantial risk of
serious harm’; and (2) the prison official subjectively
demonstrates ‘deliberate indifference to inmate health or
safety.’”

Grabow v. County of Macomb, 580 Fed. Appx. 300, 307

(6th Cir. Aug. 29, 2014), quoting Farmer v. Brennan, 511 U.S.
825, 832, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994) (alteration in
original).

Thus, the constitutional standard has both an

objective and a subjective component, focusing not only on how
serious the detainee’s medical needs were, but also how the
defendant or defendants understood those needs and what they did
to address them.

See Comstock v. McCrary, 273 F.3d 693, 702 (6th

Cir. 2001).
The Court of Appeals has observed that, in the prisoner
suicide context, “proof of a prisoner’s psychological needs
manifesting themselves in suicidal tendencies with ‘a strong
likelihood that he would attempt to take his own life’ are
sufficiently serious for purposes of the objective component.”
Galloway v. Anuszkiewicz, 2013 WL 1149679, at *3 (6th Cir. Mar.
21, 2013), quoting Gray v. City of Detroit, 399 F.3d 612, 616
(6th Cir. 2005).

As to the subjective component, a plaintiff

must demonstrate 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.’”

Phillips v. Roane Cnty., Tenn.,

534 F.3d 531, 540 (6th Cir. 2008), quoting Comstock, 273 F.3d at
703.

In this context, the proper inquiry is whether “the
9

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 a deliberate indifference to the
decedent’s serious medical needs.”

Gray, 399 F.3d at 616.

Recently, the Court of Appeals discussed its deliberate
indifference jurisprudence in the prison suicide context,
stating:
we have held that a plaintiff demonstrated deliberate
indifference sufficient to overcome a motion for summary
judgment when, for example: (1) the prison official who
placed the inmate on suicide watch failed to review
medical records and psychological tests administered to
an inmate, did not speak to officers who arranged
psychological consults for an inmate or observed the
inmate on a daily basis, did not speak with psychologists
who previously met with an inmate, and only asked the
inmate a few cursory questions before removing inmate
from observation, Comstock, 273 F.3d at 707-10; (2) a
prison official had actual knowledge of an inmate’s past
suicide attempts, knew the inmate’s suicidal tendencies
were provoked by his kidney conditions, and ignored the
inmate’s crying, complaints of kidney pain, and other
suicidal gestures on the night of his death, Schultz v.
Sillman, 148 Fed. Appx. 396, 401-03 (6th Cir. 2005); and
(3) a prison official moved an inmate from suicide watch
even though the official knew the inmate threatened and
attempted suicide on several occasions within the same
month in the jail and had previously been placed on
behavior and suicide watches during multiple prior
incarcerations at the same jail, Perez, 466 F.3d at 42426.
On the other hand, we have held that the plaintiff
failed to overcome a motion for summary judgment when the
plaintiff only demonstrated, for example that (1) the
inmate yelled, destroyed items in his cell, had chest
pain, and banged on his cell, but no single prison
official observed all of these actions, Gray, 399 F.3d at
616-16; and (2) the inmate’s behavior prompted the prison
psychologist to issue a suicide precautions blanket and
order observations every fifteen minutes, but the
psychologist failed to take the additional precaution of
directly warning the jail staff that the inmate might be
suicidal, Galloway, 518 Fed. Appx. at 331-35.

10

Grabow, 580 Fed. Appx. at 308-09.

Under the relevant law,

“[p]rison officials need only take reasonable precautions to
prevent inmate suicide; they do not insure or guarantee the life
of a prisoner.”

Galloway, 2013 WL 1149679, at *5.

Thus, even if

a prison official was aware of a serious suicide risk, that
prison official may be free from liability if he “‘responded
reasonably to the risk, even if the harm ultimately was not
averted.’”

Comstock, 273 F.3d at 706, quoting Farmer, 511 U.S.

at 844.
In this case, Defendants concede that Mr. Overbey’s
psychological needs were sufficiently serious to satisfy the
objective component of the deliberate indifference standard.
Indeed, Deputy Sloane placed Mr. Overbey on potential suicide
risk based on his belief that Mr. Overbey’s psychological
condition might lead him to have suicidal thoughts (although he
never expressed them) and that there was at least a possibility
that Mr. Overbey might attempt to take his own life.

From these

facts, a jury could find that Mr. Overbey had a serious medical
need which required some attention from jail officials.
Consequently, the focus here is not on what the Defendants knew
or when they knew it; it is on what they did in response to that
knowledge.

The Court will address that question first with

respect to Deputy Vogelmeier.
1.

Deputy Vogelmeier

The only one of the defendants who dealt directly with Mr.
Overbey on the day in question was Deputy Vogelmeier.
of mind is directly at issue here.

His state

As the law cited above

requires, the Court must determine if a jury could find these
things about his state of mind: (1) he subjectively perceived
(that is, he knew) facts which suggested that Mr. Overbey was at
risk of harm; (2) he actually drew that inference (that is, he
not only knew the facts which put Mr. Overbey at risk, but he
11

also believed that Mr. Overbey was at risk); and (3) he
consciously and deliberately disregarded the risk of harm that he
knew about, leading to Mr. Overbey’s death.

Again, all parties

agree that Deputy Vogelmeier became aware at the start of his
shift on July 12, 2011, that Mr. Overbey had been placed on
suicide risk, so a jury could easily find that he knew enough
facts to put a reasonable person on notice that some level of
suicide potential existed.

Additionally, there does not seem to

be much dispute about whether he understood the significance of
those facts - he knew that Mr. Overbey had already been classed
as a suicide risk, and his conduct on the day in question reflect
that knowledge.

Thus, the crucial issue is whether Deputy

Vogelmeier disregarded that risk in a way that would make him
liable - or, more properly put, since the Court is ruling on a
summary judgment motion, whether a jury could reach that
conclusion.
In their motion for summary judgment, Defendants argue that
“Deputy Vogelmeier did nothing unreasonable, let alone reckless,
with respect to Overbey’s medical and/or psychological needs.”
(Doc. 49 at 11).

Defendants point to the following in support of

their position:
Overbey was placed on potential suicide risk by the
previous shift. Mental health met with and evaluated
Overbey. Upon arriving in B-module, Vogelmeier spent the
brief time before Overbey left for visitation monitoring
Overbey and assisting with med pass. After visitation,
Vogelmeier continued to monitor Overbey and was on his
way to talk with him when Overbey jumped to his death.
Prior to this, Vogelmeier did not observe anything
unusual with Overbey to cause him concern.
Id. (internal citations omitted).

In opposing the motion for

summary judgment, Plaintiffs do not really take issue with this
summary of the facts, but they argue that Deputy Vogelmeier
disregarded the risk of suicide because he did not have Mr.

12

Overbey seen and treated by a medical professional and he
permitted him to walk freely to the upper level of B-module where
there was no protective netting.

In their reply, Defendants

assert that Deputy Vogelmeier complied with the ACA policy which
allowed Mr. Overbey to walk freely without physical restriction.
They also point out that Mr. Overbey was seen and evaluated by a
mental health professional, social worker Andy Santos, after he
was placed on potential suicide risk, and that he was scheduled
to be evaluated by the jail doctor the following day.
As noted previously in this Opinion and Order, potential
suicide risk is one of three levels of suicide prevention and
intervention described in the ACA policy adopted by the Licking
County Justice Center.

Potential suicide risk is the lowest

level of suicide prevention and intervention in that policy, and
inmates are placed on that level if they are upset, have a
previous history of suicide attempts, or are deemed to be a
potential suicide risk.

Corrections officials are instructed to

deal with this level of risk by monitoring the person visually in
increments of no more than 10 minutes and noting the individual’s
status on a suicide risk log.

In addition, all non-prescription

medications are to be removed from the individual’s cell.

In

this case, there is no dispute that Deputy Vogelmeier complied
with the ACA policy.
In arguing that Deputy Vogelmeier was deliberately
indifferent to Mr. Overbey’s medical or psychological needs
because he allowed Mr. Overbey to walk freely without
restriction, Plaintiffs are, in essence, arguing that following
the ACA policy for potential suicide risk to the letter
constituted deliberate indifference to Mr Overbey’s
constitutional right to receive adequate care, including suicide
prevention measures.

This Court disagrees, and finds that no

reasonable jury could reach that conclusion.
13

At the time that

Mr. Overbey was placed on potential suicide risk, he had not
expressed an intent to harm himself, nor had he taken any
affirmative steps toward suicide.

Further, Deputy Vogelmeier was

aware only that the jail officials who dealt with Mr. Overbey
earlier that day had deemed him to be at the lowest level of risk
for suicide, and there are no facts from which a jury could
conclude that Deputy Vogelmeier should have raised the risk level
himself or instituted additional precautions.

Plaintiffs do not

point to any facts which, either under the ACA policy or
otherwise, were both known to Deputy Vogelmeier and which pointed
to the existence of a more significant risk to Mr. Overbey.

To

say that deliberate indifference existed in these circumstances
would be to say that everyone deemed to be at the lowest level of
suicide risk must be either confined to a cell or restricted to
an area of a jail where there is no possibility that the person
could suddenly decide to harm himself.

Perhaps those measures

would be “best practices” (or perhaps not - but that is not the
question here), but the Constitution does not require them.
Plaintiffs also argue that Deputy Vogelmeier disregarded the
risk that Mr. Overbey might commit suicide by not having him
examined immediately by the jail physician or psychiatrist.
However, there is no evidence in the record to support that
claim.

Deputy Vogelmeier knew that Mr. Overbey had already been

examined by a mental health social worker and that he was
scheduled to meet with the facility’s doctor the following day.
During the time when Deputy Vogelmeier was observing Mr. Overbey,
nothing occurred which would have led a jail official to believe
that an immediate referral to a doctor was either necessary or
advisable.

Again, a reasonable jury could not find Deputy

Vogelmeier liable for failing to accelerate that process.
Nothing about his observations, or the undisputed facts about Mr.
Overbey’s behavior, suggested that if he were not immediately
14

taken to the doctor - and, for purposes of this case, that means
within the first 40 minutes of Deputy Vogelmeier’s shift - he
would harm himself.
Were there things which could have been done differently?
Certainly, in hindsight, it would appear that everyone, including
Deputy Vogelmeier, wishes that Mr. Overbey’s suicide had not
occurred.

Did the suicide occur as a result of Deputy

Vogelmeier’s failure to take reasonable steps to monitor Mr.
Overbey, consistent with the level of risk which Deputy
Vogelmeier actually understood to exist?
that.

A jury could not find

He is therefore entitled to summary judgment on the claim

under 42 U.S.C. §1983.
2.

Sheriff Thorp

The Court now turns to the allegations against Sheriff
Thorp.

Plaintiffs do not mention Sheriff Thorp specifically in

their opposition to the summary judgment motion, nor have they
contradicted Sheriff Thorp’s sworn statement that he had no
personal involvement with Mr. Overbey on the day in question.

As

Defendants point out, “liability under §1983 must be based on
active unconstitutional behavior and cannot be based upon a ‘mere
failure to act.’”

Shehee v. Luttrell, 199 F.3d 295, 300 (6th

Cir. 1999), quoting Salehpour v. University of Tennessee, 159
F.3d 199, 206 (6th Cir. 1998).

In other words a supervisory

official who did not participate directly in an alleged
constitutional violation may be held liable under 42 U.S.C. §1983
only in very specific situations, and simply being the supervisor
of a person who has committed a constitutional violation is not
one of them.

See Monell v. Department of Soc. Servs., 436 U.S.

658 (1978); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984).
It is true that a supervisor’s failure adequately to train a
subordinate officer appropriately may be a valid theory of
15

liability under §1983.

See, e.g., Phillips v. Roane Cnty.,

Tenn., 534 F.3d 531, 543 (6th Cir. 2008).
that claim below.

The Court examines

To the extent that Plaintiffs claim that

Sheriff Thorp acted with deliberate indifference to Mr. Overbey’s
serious medical or psychological needs based upon any direct
involvement with Mr. Overbey, however, there is simply no
evidence of that, and the Court will grant Sheriff Thorp summary
judgment on that claim.
B. Failure To Train
Since the Supreme Court’s decision in Monell v. Department
of Social Services, 436 U.S. 658 (1978), municipal governmental
bodies such as cities and counties are considered to be “persons”
who can be sued under 42 U.S.C. §1983.

However, Monell made

clear that a municipality cannot be held liable under that
statute simply because it employed an individual who violated the
plaintiff’s constitutional rights.

Rather, the plaintiff must

prove that the individual’s actions can legitimately be viewed as
the actions (or the direct result of actions) of the county
itself.
In decisions handed down after Monell, the Supreme Court
outlined several ways in which a plaintiff can prove municipal
liability under §1983.

One of the most common methods is to show

that the municipality had a policy or practice of failing to give
adequate training to its employees about how to behave in
situations they are likely to encounter.

If those untrained

employees then violate the constitution in such a situation, it
may fairly be said that the cause of that violation was the
county’s failure to train its employees to do otherwise.

See,

e.g., City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
However, not just any failure to train will do.

As the

Harris court observed, “it may happen that in light of the duties
assigned to specific officers ... the need for more or different
16

training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of
the [county] can reasonably have been said to have been
deliberately indifferent to the need.”

If that is so, “the

failure to provide proper training may fairly be said to
represent a policy for which the [county] is responsible, and for
which the [county] may be held liable if it actually causes
injury.”

Id. at 390 (footnotes omitted).

For liability to

attach under this theory, the plaintiff must also prove that “the
identified deficiency in a [county]’s training program [is]
closely related to the ultimate injury.”

Id. at 391.

Further,

it is important to keep in mind that even if “a particular
officer may be unsatisfactorily trained, [that fact] will not
alone suffice to fasten liability on the [county]” and that the
negligent administration of “an otherwise sound program” is not a
basis for §1983 liability.

Finally, the Harris court pointed

out, and it is worth remembering, that “adequately trained
officers occasionally make mistakes, [and] the fact that they do
says little about the training program or the legal basis for
holding the [county] liable.”

Id.

In addition to a failure-to-train claim asserted against a
municipality, a plaintiff may also bring a failure-to-train claim
against a supervisor in his individual capacity or in his
official capacity.

As the Court of Appeals has stated:

For individual liability on a failure-to-train or
supervise theory, the defendant supervisor must be found
to have “‘encouraged the specific incident of misconduct
or in some other way directly participated in it.’”
Phillips v. Roane Cty., 534 F.3d 531, 543 (6th Cir.
2008), quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999).
A plaintiff must demonstrate that the
defendant supervisor “‘at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional
conduct of the offending officers.” Id. (quoting Shehee,
199 F.3d at 300). A mere failure to act will not suffice
to establish supervisory liability. Gregory v. City of
17

Louisville, 444 F.3d 725, 751 (6th Cir. 2006).
Essex v. County of Livingston, 2013 WL 1196894, at *3 (6th Cir.
Mar. 25, 2013).

Thus, for an individual capacity claim to

succeed, a plaintiff must prove that it was the “defendant
supervisor’s active engagement in a function of [his] position”
that resulted in the injury.

Id.

In contrast, a failure-to-

train claim against a supervisor in his official capacity arises
when a defendant supervisor acts with deliberate indifference in
his position as a policymaker.

Phillips, 534 F.3d at 543.

Official capacity claims “do not require direct participation in
or encouragement of the specific acts; rather, these claims may
be premised on a failure to act.”

Essex, 2013 WL 1196894, at *4.

Defendants’ summary judgment motion sets forth several
reasons why, in their view, Plaintiffs cannot prove a supervisory
liability claim against either Sheriff Thorp or Licking County.
Specifically, Defendants argue:
First, there is no failure-to-train theory because none
of the individual Defendants (Vogelmeier) are liable for
violating Overbey’s constitutional rights. Second, in
light of the record in this case, Plaintiff (sic) cannot
identify a need for training that was so inadequate, and
so likely to result in a violation of an inmate placed on
suicide watch’s civil rights, that any of the Defendants
could be found to have been deliberately indifferent.
(Doc. 49 at 12).

Defendants argue that Plaintiffs have failed to

produce any evidence demonstrating that any corrections officer
or deputy was unfamiliar with the applicable ACA policy or failed
to follow the applicable policy.

Thus, Defendants claim that

“[t]here was no inadequacy of training, let alone an inadequacy
that was so glaring to be a constitutional violation.”

Id. at

13.
Plaintiffs make a brief argument in opposition to the motion
for summary judgment on their failure-to-train theory.
Plaintiffs’ argument, in its totality, states:
18

Vogelmeier admitted that he had no suicide training
(Vogelmeier Dep. Tr. 12-21), that he was called in from
the road to replace the regularly scheduled deputy inside
the jail, and that he is more of a drug agent than a
correction officer. (Vogelmeier Dep. Tr. 103-104). The
jail had 2 prior suicides in 90 days. Vogelmeier also
admitted he did not speak to Overbey when Vogelmeier came
on shift and before Overbey committed suicide.
(Vogelmeier Dep. Tr. 56). A jury could conclude that the
failure to train its jail personnel amounted to a
constitutional violation (deliberate indifference), and
Vogelmeier’s lack of training caused Overbey’s suicide.
See Grose v. Caruso, 284 Fed. Appx. 279; Lupo v.
Voinovich, 235 F. Supp.3d 782, 794 n.8 (S.D. Ohio 2002).
Therefore, this Court should leave this issue for a jury
to decide.
(Doc. 54 at 8-9).

In reply, Defendants reiterate the arguments

set forth in the motion and also refer the Court to Deputy
Vogelmeier’s affidavit.

In his affidavit, Deputy Vogelmeier

explains that he received two forms of training on suicide
detection and prevention, first at the Jail Academy after he was
hired in 2008 and, second, at least once per year as in-service
training.
Based on this evidence, this Court finds that no reasonable
jury could conclude that the need for more or different training
was so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that Licking County or
Sheriff Thorp could reasonably be said to have been deliberately
indifferent to the need for training on suicide prevention.
Plaintiffs have not produced any evidence from which a jury could
infer that any alleged deficiency in Licking County’s training of
Deputy Vogelmeier, or any of its deputies, was closely related to
Mr. Overbey’s suicide - that is, that more or different training
would have changed what Deputy Vogelmeier or others did on the
day in question.

But perhaps most importantly, the Court is

granting summary judgment on the issue of whether any

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constitutional violation occurred; since that issue is being
resolved in Defendants’ favor, there can be no municipal
liability on a failure to train claim.

See Ewolski v. City of

Brunswick, 287 F.3d 492, 516 (6th Cir. 2002)(“Where ... a
municipality's liability is alleged on the basis of the
unconstitutional actions of its employees, it is necessary to
show that the employees inflicted a constitutional harm”).

Thus,

all of the defendants are entitled to summary judgment on all of
the federal law claims.
C. Wrongful Death and Survivorship
Although Ohio law provides civil remedies for wrongful death
and survivorship, see, e.g., In re Heparin Prods. Liab. Litig.,
2011 WL 3875361, at *4 (N.D. Ohio Sept. 1, 2011), it also
provides both Licking County and its employees broad statutory
immunity from such claims.

The immunity granted to Licking

County arises under O.R.C. §2744, and it is subject to just five
exceptions.

Defendants correctly argue that none of those

exceptions apply in this case.

Defendants explain:

This case does not concern a motor vehicle, a public
road, or any grounds or buildings, and this [sic] R.C.
2744.02(B)(1), (3) and (4) are inapposite. R.C.
2744.02(B)(2) does not apply because the operation of a
jail a [sic] governmental, rather than proprietary,
function.
See Hiles v. Franklin County Bd. Comm’rs,
Franklin App. 05AP-253, 2006-Ohio-16, ¶34 (citing R.C.
2744.01(C)(2)(h) and Busscio v. McFaul (Aug. 2, 2001),
Cuyahoga App. No. 78758, 2001 Ohio App. LEXIS 3407. And
lastly, there is no provision in the Ohio Revised Code
that imposes liability on Licking County under these
circumstances. See R.C. 2744.02(B)(5).
(Doc. 49 at 18-19).

For these reasons, Licking County is immune

from Plaintiffs’ claims for wrongful death and survivorship.
Similarly, O.R.C. §2744.03(A) provides employees of a
political subdivision statutory immunity from lawsuits seeking
“to recover damages for injury, death, or loss to person or

20

property allegedly caused by an act or omission in connection
with a government or proprietary function....”

As noted above,

the operation of the Licking County Justice Center is a
governmental function.

O.R.C. §2744.01(C)(2)(h).

Consequently,

its employees are entitled to sovereign immunity unless:
(a) The employee’s actions or omissions were manifestly
outside the scope of the employee’s employment or the
employee’s 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
employee by a section of the Revised Code.
O.R.C. §2744.03(A)(6)(a)-(c).

upon

the

The first and third of these

exceptions do not apply to the facts of this case.

Thus, in

resolving the individual defendants’ motion for summary judgment
on this claim, the Court must decide whether a jury could find
that either of them acted in a wanton or reckless manner.

See

Rankin v. Cuyahoga Cty. Dep’t. of Children and Family Servs., 118
Ohio St.3d 392, 397 (2008).

In arguing that a jury could so

find, Plaintiffs rely on the arguments they made in support of
their §1983 claim.
First, as to Sheriff Thorp, his sworn statement reflects
that he had no personal involvement with Mr. Overbey, so he could
not have acted with the necessary wanton or reckless state of
mind to void his immunity under state law.

As to Deputy

Vogelmeier, the Court has found that a jury could not conclude,
based on these facts, that he exhibited deliberate indifference
to Mr. Overbey’s serious medical needs.

For the same reasons, a

jury could not find that his behavior was wanton or reckless as
those terms are defined in Ohio law.

The Court of Appeals has

suggested, in fact, that “the threshold for liability appears to
be slightly higher under Ohio law” than the “deliberate
21

indifference” threshold for liability under §1983.

Stefan v.

Olson, 497 Fed. Appx. 568, 581 (6th Cir. Aug. 31, 2012); see also
Ruiz Bueno v. Scott, 2014 WL 5308615, *20 (S.D. Ohio Oct. 16,
2014)(holding that the absence of a genuine issue of material
fact as to federally-based deliberate indifference claims also
warrants summary judgment on the issue of state law immunity).
Therefore, statutory immunity applies to his actions as well.
Consequently, Defendants’ motion for summary judgment as to the
state law claims will be granted.
D. Spoliation of Evidence
Defendants have also moved for summary judgment on a state
law claim for spoliation of evidence.

In their response,

Plaintiffs state that they “do not challenge Defendants’ Motion
Summary Judgment [sic] as it relates to the spoliation claim.”
(Doc. 54 at n.3).

For that reason, and because there is no

evidence in the record to support that claim, that portion of the
motion for summary judgment will be granted as well.
V. Conclusion
Jail suicide cases are almost uniformly tragic.

Sometimes,

jail officials do not live up to their duty to take appropriate
measures to prevent a jail inmate from committing suicide.
that happens, they are properly held liable.
this case tell a different story.

When

But the facts of

Here, jail officials took Mr.

Overbey’s situation seriously, giving him access to a mental
health social worker, putting him on an acceptable level of
suicide watch, scheduling him to see a doctor, and monitoring his
movements at least every ten minutes.

In particular, Deputy

Vogelmeier followed ACA policy and was on his way to speak to Mr.
Overbey when he jumped to his death.

Regrettable as that

occurrence was, a jury could not reasonably find that Mr.
Overbey’s death resulted from a violation of his constitutional
rights.

For all of the reasons set forth in this Opinion and
22

Order, Defendants’ motion (Doc. 55) to strike Plaintiffs’
response in opposition to the motion for summary judgment is
denied and Defendants’ motion for summary judgment (Doc. 49) is
granted.

The Clerk shall enter judgment in favor of the

Defendants and terminate this case.
/s/ Terence P. Kemp
United States Magistrate Judge

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