Rogers v. The State of Ohio et al

Filing 35

REPORT AND RECOMMENDATIONS re 13 MOTION for Judgment on the Pleadings filed by City of Stubenville Ohio, 27 MOTION for Judgment on the Pleadings filed by Alterik Rogers. It is RECOMMENDED that the motions be DENIED without prejudice to renewal. Objections to R&R due by 1/7/2016. Signed by Magistrate Judge Norah McCann King on 12/21/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALTERIK ROGERS,
Plaintiff,
vs.

Civil Action 2:15-cv-1877
Chief Judge Sargus
Magistrate Judge King

THE STATE OF OHIO, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court on the Defendant City of
Steubenville’s Motion for Judgment on the Pleadings, ECF No. 13
(“City’s Motion”) and Plaintiff’s Motion for “Judgment on the
Pleadings” Against “Defendant City of Steubenville, Ohio” Pursuant to
{Fed.Civ.R.12(C)}, ECF No. 27 (“Plaintiff’s Motion”).

For the reasons

that follow, it is RECOMMENDED that the motions be DENIED without
prejudice to renewal.
I.

Factual Allegations and Procedural Background
Plaintiff, a state inmate proceeding without the assistance of

counsel, alleges that he was in the custody of the Jefferson County
Jail, Steubenville, Ohio on January 14, 2014.
PAGEID#:30.1

Complaint, ECF No. 3,

According to plaintiff, he was handcuffed and not wearing

a seat belt while riding in the back of a patrol car operated by
defendant police officer Sean Scott.

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The Complaint is verified.

Id.

Id. at PAGEID#:32.

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Plaintiff alleges that

defendant Scott, who was transporting plaintiff from a court
appearance was driving erratically and at high speeds.

Id.

As he

approached the Jefferson County Jail’s garage, defendant Scott
allegedly accelerated and crashed into the back of a parked bus inside
the garage (“the incident”).
not taken to a hospital.

Id.

Id.

Despite his requests, plaintiff was

After he returned to his cell in the

Jefferson County Jail, plaintiff complained of injuries and again
asked to be taken “to medical.”

Id.

Plaintiff was “escorted to

medical to see a Nurse (Name Unknown), she stated ‘there is nothing we
can do for you, I agree with the officer’s [sic] your bond is to [sic]
high to escort you to the hospital.’”

Id.

According to plaintiff, he

still suffers from injuries arising from the incident.

Id. at

PAGEID#:30-31.
Plaintiff filed this action under 42 U.S.C. § 1983 on May 13,
2015. He alleges that he suffered injury during the course of the
incident and was thereafter denied medical care by personnel at the
Jefferson County Jail.

See generally Complaint.

Plaintiff names as a

defendant, inter alios, the City of Steubenville, Ohio (“the City”).
See id.; Order, ECF No. 2 (granting leave to proceed in forma
pauperis); Report and Recommendation on Initial Screen of the
Complaint, ECF No. 4 (recommending that the State of Ohio be dismissed
from the action); Order, ECF No. 8 (adopting and affirming report and
recommendation).

Plaintiff seeks, inter alia, monetary damages from

the City “for pain and suffering and mental anguish do [sic] to the
neglect and disregard to my personal safety, and denial of medical

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treatment with deliberate indifference.”

Id. at PAGEID#:31.

The City now moves to dismiss the claims against it.
Motion.

See City’s

To the extent that it can be construed as a response to the

City’s Motion, the Court will consider plaintiff’s filing dated August
10, 2015.

ECF No. 16 (“Plaintiff’s First Response”).

See also Order,

ECF No. 17 (striking ECF No. 16 to the extent that it is a response to
the City’s answer to the Complaint, but accepting that filing to the
extent that it responds to the City’s Motion).

Shortly thereafter,

plaintiff filed another response to the City’s Motion.

Plaintiff’s

response to and or Motion to Dismiss Defendant City of Steubenville
Ohio’s Motion for Judgment on the Pleadings, ECF No. 20 (“Plaintiff’s
Second Response”).

The City has filed a reply.

Defendant City of

Steubenville’s Reply in Support of Its Motion for Judgment on the
Pleadings, ECF No. 22 (“City’s Reply”).
Thereafter, Plaintiff’s Motion was filed, which the City opposes.
ECF No. 31 (“City’s Response”).

Plaintiff has not filed a reply in

support of Plaintiff’s Motion.
II.

Standard
The City and plaintiff both move for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

A

motion for judgment on the pleadings under Rule 12(c) attacks the
sufficiency of the pleadings and is reviewed under the same standard
applicable to a motion to dismiss under Rule 12(b)(6).
Hog Mkt., 249 F.3d 509, 511–12 (6th Cir. 2001).

Ziegler v. IBP

See also Gascho v.

Glob. Fitness Holdings, LLC, 918 F. Supp.2d 708, 716 (S.D. Ohio 2013)
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(“It is well-settled that the standard of review for a motion for
judgment on the pleadings under Rule 12(c) is the same as that used to
address a motion to dismiss under Rule 12(b)(6).”).

A complaint may

be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the ... claim is and the grounds upon
which it rests.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46(1957)).

Although

a complaint need not contain detailed factual allegations, a
plaintiff’s allegations must include more than labels and conclusions.
Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”).

The court must

determine whether the complaint contains “enough facts to state a
claim to relief that is plausible on its face.”
570.

Twombly, 550 U.S. at

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
U.S. at 678.

Iqbal, 556

Although the plausibility standard is not equivalent to

a “‘probability requirement,’ ... it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Twombly, 550 U.S. at 556).

Id. (quoting

“[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.”
P. 8(a)(2)).

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Id. at 679 (quoting Fed. R. Civ.

The Court also notes that plaintiff is proceeding in this case
without the assistance of counsel.

Generally, pleadings by pro se

plaintiffs are held “to less stringent standards than formal pleadings
drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Nevertheless, courts should not interpret procedural rules “so as to
excuse mistakes by those who proceed without counsel.”
United States, 508 U.S. 106, 113 (1993).

McNeil v.

See also Wells v. Brown, 891

F.2d 591, 594 (6th Cir. 1989) (“Neither this Court nor other courts,
however, have been willing to abrogate basic pleading essentials in
pro se suits.”).
III. Discussion
Plaintiff asserts claims against the City, purportedly under a
theory of municipal liability.

A governmental entity cannot be held

liable under § 1983 on the theory of respondeat superior simply
because its employees allegedly engaged in unconstitutional conduct.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

Rather, a

plaintiff seeking to prevail in a § 1983 suit against a governmental
entity must first prove that a constitutional violation actually
occurred, and then prove that a policy or custom of the governmental
entity was the “moving force” behind the alleged constitutional
violation.

Id. at 694.

Such a policy or custom may consist of: “(1)

the [governmental entity’s] legislative enactments or official agency
policies; (2) actions taken by officials with final decision-making
authority; (3) a policy of inadequate training or supervision; or (4)
a custom of tolerance of or acquiescence of federal rights
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violations.”

Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th

Cir. 2005).

Under Monell, a custom is defined as a practice “so

permanent and well settled as to constitute a custom or usage with the
force of law.” Monell, 436 U.S. at 691 (internal quotation marks and
citation omitted).

“In turn, the notion of ‘law’ must include deeply

embedded traditional ways of carrying out [governmental] policy.”
Cash v. Hamilton County Dep’t of Adult Prob., 388 F.3d 539, 543 (6th
Cir.2004)(internal quotation marks omitted).

“It must reflect a

course of action deliberately chosen from among various alternatives.
In short, a ‘custom’ is a ‘legal institution’ not memorialized by
written law.”

Id.

A “plaintiff bears a heavy burden in proving

municipal liability, and he cannot rely solely on a single instance to
infer a policy of deliberate indifference.”

Thomas, 398 F.3d at 433.

In the case presently before the Court, the Complaint does not
allege the existence of an improper policy or custom.
Complaint.

See generally

However, in opposing the City’s Motion, plaintiff argues,

inter alia, that “Officer Scott did not use seatbelts because it has
been a long standing custom not to secure detainees or other[s] by
using seatbelts in the cruisers.”

Plaintiff’s Second Response, p. 3.

Plaintiff also argues that the defendant City has a custom “not to
have passengers in an accident evaluated by a medical professional for
possible injuries[.]”

Id. at 6.

The City, inter alia, characterizes

these allegations as new and contends that, to the extent the Court is
inclined to consider them, the Court should order plaintiff to file an
amended complaint that clarifies his allegations.

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City’s Reply, p. 3.

The City’s argument in this regard is well-taken.

The Court will

grant plaintiff leave to file an amended complaint to clarify his
allegations against the City.
WHEREUPON, it is RECOMMENDED that the Defendant City of
Steubenville’s Motion for Judgment on the Pleadings, ECF No. 13, and
Plaintiff’s Motion for “Judgment on the Pleadings” Against “Defendant
City of Steubenville, Ohio” Pursuant to {Fed.Civ.R.12(C)}, ECF No. 27,
be DENIED without prejudice to renewal.

If plaintiff wishes to amend

his Complaint to assert specific factual allegations in support of his
claim of municipal liability against the City, he must do so no later
than January 11, 2016.

Plaintiff is REMINDED that his factual

allegations must be more than conclusory statements.
Twombly, 550 U.S. at 555; Iqbal, 556 at 678.

See, e.g.,

Plaintiff is FURTHER

REMINDED that the new amended complaint, if any, must be
comprehensive, i.e., it must contain all claims against all defendants
against whom he wishes to assert claims.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
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the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

December 21, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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