Walker v. Joyce et al

Filing 17

REPORT AND RECOMMENDATIONS THAT: (1) MONTGOMERY COUNTY'S UNOPPOSED MOTION TO DISMISS (DOC. 14 ) BE GRANTED ON THE MERITS; (2) PLAINTIFF'S CLAIMS AGAINST DEFENDANT JOYCE AND HATTON BE DISMISSED; (3) ALTERNATIVELY, THIS CASE BE DISMISSED F OR PLAINTIFF'S FAILURE TO PROSECUTE; AND (4) THIS CASE BE TERMINATED ON THE COURT'S DOCKET. Objections to R&R due by 3/21/2016. Signed by Magistrate Judge Michael J. Newman on 3/3/2016. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
EBONY D. WALKER,
Plaintiff,

Case No. 3:15-cv-136

vs.
MEGAN KELLY JOYCE, et. al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.

REPORT AND RECOMMENDATION1 THAT: (1) MONTGOMERY COUNTY’S
UNOPPOSED MOTION TO DISMISS (DOC. 14) BE GRANTED ON THE MERITS; (2)
PLAINTIFF’S CLAIMS AGAINST DEFENDANTS JOYCE AND HATTON BE
DISMISSED; (3) ALTERNATIVELY, THIS CASE BE DISMISSED FOR PLAINTIFF’S
FAILURE TO PROSECUTE; AND (4) THIS CASE BE TERMINATED ON THE
COURT’S DOCKET

This is a 42 U.S.C. § 1983 civil rights action filed by pro se Plaintiff Ebony D. Walker
(“Walker”) against three Defendants: Montgomery County, Ohio (“the County”); Montgomery
County Children Services (“MCCS”) caseworker Megan Kelly Joyce (“Joyce”); and MCCS
supervisor Kathy Hatton (“Hatton”). Doc. 9. The facts, as alleged by Walker, concern his minor
daughter’s treatment by others and tragic death. The case is now before the Court on the
County’s motion to dismiss. Doc. 14. Walker did not file a memorandum in opposition to the
County’s motion, and the time for doing so has expired. The Court ordered Walker to show
cause as to why the County’s motion should not be granted, and he failed to respond as ordered.
The Court has carefully considered all of the documents before it, and the County’s unopposed
motion to dismiss is now ripe for decision.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

This case is also before the Court on an Order directing Walker to show cause as to why
this case should not be dismissed against defendants Joyce and Hatton for his failure to timely
serve them. Doc. 16. Walker failed to respond to the Show Cause Order.
I.
In liberally construing Walker’s allegations, the undersigned considers both the
complaint and amended complaint. Docs. 2, 9. Walker’s daughter Ebonie was born on January
16, 2009. Doc. 2 at PageID 22. Ebonie lived with Walker for approximately twenty months
(i.e., until approximately September 2010), until he was notified by Joyce that he “would be
charged with kidnapping” unless he “turn[ed his] daughter over” to her mother because “babies
should be with [their] mothers at that time in their life.” Id.; doc. 9 at PageID 45. Walker claims
that Ebonie was then “force[d] on an unwilling parent” and made “to live in a house where
illegal drug[s] and alcohol were being sold.” Doc. 9 at PageID 45.
Walker alleges that, while Ebonie was in her mother’s custody, she was “abused and
neglected”; “often left alone” with her younger sibling for over twenty-four hours; and, on
August 11, 2011, badly beaten with an appliance cord. Id.; doc. 2 at PageID 23. While in her
mother’s care, Ebonie tragically died after being struck by a car. Doc. 9 at PageID 45.
Walker contends that Joyce and Hatton -- Joyce’s supervisor at MCCS -- knew that
Ebonie’s mother used drugs, abused alcohol, and had mental disabilities. Id. at PageID 45-46.
According to Walker, Joyce and Hatton failed to protect Ebonie despite being made aware of the
appliance cord injury. Id. at PageID 45; doc. 2 at PageID 23. Walker contends that Joyce
repeatedly failed to execute a designated safety plan, and neglected to check on Ebonie during
her last months. Doc. 9 at PageID 45. Walker also alleges that Joyce forged Hatton’s signature
on official paperwork, and Hatton never inquired about Ebonie’s care.

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Id. at PageID 46.

According to Walker, Joyce and Hatton “kept putting [his] child in harm’s way,” and Ebonie’s
death could have been prevented if they had done their jobs. Id. at PageID 45-46.
To that end, Walker claims Defendants violated his due process and equal protection
rights.2 Id. at PageID 44-46. The County now moves to dismiss Walker’s amended complaint
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim and because, the County contends,
it is not a proper party to this case. Doc. 14 at PageID 59.
II.
A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal for “failure to state a claim upon which relief
can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)(2) 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, 555 (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 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, 286 (1986)). Further,
“[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id.
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
2

Walker also appears to assert claims against his former attorney George Oryshkewych, and an
unnamed county prosecutor -- neither of whom are parties to this case. Doc. 9 at PageID 45.
Accordingly, these claims should be dismissed.

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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. In addition to well-pleaded allegations in the complaint,
the Court may also consider “matters of public record, orders, items appearing in the record of
the case, and exhibits attached to the complaint,” as well as documents attached to a defendant’s
motion to dismiss that are important to the plaintiff’s claims or if referred to in the complaint.
Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (citation omitted); Composite Tech.,
L.L.C. v. Inoplast Composites S.A. de C.V., 925 F. Supp. 2d 868, 873 (S.D. Ohio 2013).
While pro se parties must satisfy basic pleading requirements, Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989), their pleadings must be liberally construed and are “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). Nevertheless, “even a pro se complaint ‘must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’” Ogle v. Columbia Gas
Transmission, LLC, 513 F. App’x 520, 522 (6th Cir. 2013) (citing Iqbal, 556 U.S. at 678).
III.
The undersigned agrees that Walker has not named the proper entity as a defendant.
Montgomery County is not sui juris and therefore lacks the capacity to be sued. McGuire v.
Ameritech Servs., Inc., 253 F. Supp. 2d 988, 1015 (S.D. Ohio 2003) (Rice, J.); Clellan v. Karnes,
No. 2:09-cv-930, 2010 WL 3470534, at *4 (S.D. Ohio Sept. 2, 2010). Instead, under Ohio law,
counties “are held accountable through their elected representatives, to wit, their
commissioners.” McGuire, 253 F. Supp. 2d at 1015; see Fed. R. Civ. P. 17(b). Because the
County is not sui juris, Walker’s claims against it should be dismissed.
Even if Walker had named the proper party (i.e., the Montgomery County
Commissioners), his claims merit dismissal because he fails to state an actionable claim. Section
4

1983 imposes liability on any “person who, under color of any statute, ordinance, regulation,
custom or usage, of any State” subjects another to “the deprivation of any rights, privileges, or
immunities secured by the Constitution or laws.” 42 U.S.C. § 1983. To prevail on a § 1983
claim, a plaintiff must demonstrate: (1) the deprivation of a right secured under the Constitution
or federal law; and (2) that the deprivation was caused by a person acting under color of state
law. McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 463 (6th Cir. 2006). While governmental
entities may be liable for constitutional violations under § 1983, such liability cannot arise from
the acts of its officials on a respondeat superior theory. Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690-91, 693 (1978). Instead, an official policy or custom must be the “moving force”
behind the alleged constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 389
(1989).
Walker sets forth no factual averments concerning a Montgomery County policy or
custom that caused a constitutional violation. See doc. 9. In fact, contrary to such a contention,
Walker specifically alleges that Joyce and Hatton put Ebonie at risk by violating established
protocol. See doc. 9 at PageID 45 (Joyce never saw Ebonie “in the last three months of her life”
and “was suppose[d] to see her at least once a month”); see also id. at PageID 46 (“[t]he
defendants were grossly negligent by not following protocol”; “Joyce also falsified her
supervisor[’]s signature on administrative reviews” instead of Hatton “sign[ing] her own name
which is policy”). Walker does not allege widespread unconstitutional conduct amongst MCCS
caseworkers, or that such conduct occurred in any case other than Ebonie’s. See doc. 9; see also
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal citations omitted) (defining
“custom or usage”). Therefore, Walker pleads no plausible claims against the County under

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Monell, and the County’s motion should be granted.3 See Nash v. Brown County, Ohio, No.
1:13-cv-741, 2015 WL 686262, at *5 (S.D. Ohio Feb. 18, 2015) (granting the county’s motion to
dismiss when “there [was] no mention of a custom, policy or practice of [the county] in the
amended complaint and no allegation that a custom, policy or practice played any part in the
constitutional violations alleged”).
IV.
The undersigned next addresses Walker’s claims against defendants Joyce and Hatton in
their individual and official capacities. “An official-capacity claim is equivalent to a claim
against the entity that employs the defendants named in their official capacity.” Ledbetter v.
Bean, No. 2:13–cv–00012, 2013 WL 1284324, *3 (M.D. Tenn. Mar. 28, 2013) (citing Monell,
436 U.S. at 690 n. 55). Accordingly, a suit against Joyce and Hatton -- employees of MCCS,
according to Walker, doc. 9 at PageID 44 -- is a suit against the County. Walker’s official
capacity claims must, therefore, be dismissed for his failure to state a claim under Monell. See
supra.
Walker’s claims against Joyce and Hatton in their individual capacities should also be
dismissed because he failed to demonstrate service of process within the 120 day time period

Although not argued by the County, it appears that Walker’s claims are time barred. In a
complaint filed in the Montgomery County, Ohio Court of Common Pleas, Walker -- proceeding with the
assistance of counsel -- stated that Ebonie was killed on February 19, 2012. See Complaint, Ebony D. M.
Walker v. Quenton D. Walker, No. 2013 cv 03770 (Montgomery Ct. C.P. June 25, 2013); see also Amini,
259 F.3d at 502. Walker’s § 1983 civil rights claims are subject to Ohio’s two-year statute of limitations
applicable to personal injury claims. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989).
“The accrual date of a § 1983 action is a question of federal law[,]” which provides that the statute begins
to run when “plaintiff[] knew or should have known of the injury which forms the basis of their claims.”
Wallace v. Kato, 549 U.S. 384, 388 (2007). Walker’s claims accrued, at the latest, on the date of
Ebonie’s death. Therefore, Walker’s complaint, filed April 15, 2015, i.e., over three years after Ebonie’s
February 19, 2012 death, is untimely.
3

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provided in Fed. R. Civ. P. 4(m).4 Walker initiated this case by filing a motion to proceed in
forma pauperis (“IFP”) on April 15, 2015. Doc. 1. After conducting an initial review of
Walker’s complaint pursuant to 28 U.S.C. § 1915(e)(2), the Court ordered the United States
Marshal to make service of process under Fed. R. Civ. P. 4(c)(3). Doc. 3. The Court’s docket
reflects that summonses were returned as “executed” as to Defendants Joyce, Hatton, and
MCCS, indicating that all Defendants were served on May 19, 2015. Doc. 5.
Upon consideration of Walker’s motion for an entry of default against Defendants, the
undersigned found service of process upon Joyce and Hatton at MCCS improper.5 Doc. 8 at
PageID 40-41; see Sandoval v. Bluegrass Reg’l Mental Health–Mental Retardation Bd., No. 995018, 2000 WL 1257040, at *5 (6th Cir. 2000) (finding the Court may consider whether there
was effective service of process before making an entry of default).

The undersigned’s

recommendation in this regard was subsequently adopted by Judge Rice, who denied Walker’s
application for an entry of default. Docs. 8, 11.
Walker filed an amended complaint on August 5, 2015 and, again, directed that
summonses issue as to Hatton and Joyce at MCCS. Docs. 9, 10. The Court, having previously
found service at this address improper as to Joyce and Hatton in their individual capacities,
struck the summonses directed to them. Doc. 12. Walker, despite being served with the Court’s
Order, has not sought reissuance of new summons as to Joyce and Hatton. On January 7, 2016 -i.e., 260 days after Walker’s complaint was filed -- the Court ordered him to show cause as to

4

As in effect on April 22, 2015 -- the day Walker filed the complaint, doc. 2 -- Fed. R. Civ. P.
4(m) required that defendants in a civil action be “served within 120 days after the complaint is filed[.]”
Effective December 1, 2015, Fed. R. Civ. P. 4(m) requires that defendants be “served within 90 days after
the complaint is filed[.]” Walker complied with neither the 90-day nor the 120-day deadline.
5
The undersigned also found that, as to defendant MCCS, Walker had not named the proper
entity. Doc. 8 at PageID 41. The Court advised Walker-- as it does again here -- that “county agencies
are held accountable through the county’s elected representatives, i.e., the county commissioners.” Id.
Nevertheless, in Walker’s amended complaint, he did not name the Commissioners as defendants but,
instead, named Montgomery County. Doc. 9; see supra.

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why his initial and amended complaints should not be dismissed for failure to timely serve Joyce
and Hatton. Doc. 16. Walker failed to respond to the Show Cause Order.
Rule 4(m) provides that if a defendant is not served within 120 days of the complaint’s
filing, “the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that service be made within a specified period.”
Fed. R. Civ. P. 4(m) (emphasis added). That 120-day period has since been shortened to 90
days. See supra note 4. Walker bears the burden of exercising due diligence in perfecting
service of process and in showing that proper service has been made. See Byrd v. Stone, 94 F.3d
217, 219 (6th Cir. 1996); Jacobs v. Univ. of Cincinnati, 189 F.R.D. 510, 511 (S.D. Ohio 1999).
This has not occurred here.
Under Rule 4, service can be made by: delivering a copy of the summons and complaint
to the individual personally; leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; delivering a copy of each
to an agent authorized by appointment or law to receive service of process; or otherwise in
accordance with Ohio law. Fed. R. Civ. P. 4(e). While service at an employer’s premises can, in
some circumstances, be proper under Ohio law, Walker must demonstrate that “the party being
served [has] such a habitual, continuous or highly continual and repeated physical presence at the
business address that the party ordering the service of process would have reasonable grounds to
calculate that the service would promptly reach the party being served.” Bell v. Midwestern
Educ. Serv., Inc., 624 N.E.2d 196, 202 (Ohio Ct. App. 1993). Walker has not done so.
Because Walker has not shown that Joyce or Hatton were properly and timely served -or that good cause exists for his failure to serve those defendants within the time required by
Rule 4(m) -- the undersigned recommends that his claims against Joyce and Hatton in their
individual capacities be dismissed. See Sandoval, 2000 WL 1257040, at *3-5 (finding that the
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district court did not abuse its discretion in dismissing the complaint of a pro se plaintiff who,
after being advised that her attempt to serve the complaint was not effective, failed to either
effect service on the defendant or show good cause for the failure to timely do so).
V.
In the alternative to all of the foregoing, the undersigned also finds that Walker -- by
failing to oppose the County’s motion to dismiss, and by failing to respond to the Court’s Order
to Show Cause (doc. 16) -- has failed to prosecute this action. Walker’s failure to respond to the
County’s motion to dismiss and/or the Court’s Order to Show Cause justifies dismissal of this
case for his lack of prosecution. See Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962); see also
Jourdan v. Jabe, 951 F.2d 108, 109-110 (6th Cir. 1991). Although Walker is proceeding pro se
in this case, the Court is mindful that “procedural rules in ordinary civil litigation should [not] be
interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil v. United
States, 508 U.S. 106, 113 (1993). Accordingly, the undersigned finds that dismissal is warranted
on lack-of-prosecution grounds.
VI.
Accordingly, based on the foregoing, the undersigned RECOMMENDS that (1)
Montgomery County’s unopposed motion to dismiss (doc. 14) be GRANTED on the merits; (2)
Plaintiff’s claims against defendants Joyce and Hatton be DISMISSED; (3) alternatively, this
case be DISMISSED for Plaintiff’s failure to prosecute; and (4) this case be TERMINATED on
the Court’s docket.

The Clerk is ORDERED to mail a copy of this Report and

Recommendation to Plaintiff at his address of record.

Date:

March 3, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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