Gilliam v. Crowe et al

Filing 19

ENTRY AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 12 ); REMANDING THE CASE TO THE COMMON PLEAS COURT FOR MONTGOMERY COUNTY, OHIO FOR ALL FURTHER PROCEEDINGS, INCLUDING CONSIDERATIONOF PLAINTIFF� 39;S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DOC. 15 ); AND TERMINATING THIS CASE ON THE COURT'S DOCKET: All of the claims alleged against the Sheriff Defendants in their individual and official capacities under 42 U.S.C. § 1983 are h ereby DISMISSED. The Court REMANDS this case to the Montgomery County Court of Common Pleas for all further proceedings, including consideration of Gilliam's Motion for Leave to File Amended Complaint. Case terminated. Signed by Judge Thomas M. Rose on 7/27/2016. (ep)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK GILLIAM,

:
Case No. 3:16-cv-147
:
Plaintiff,
:
Judge Thomas M. Rose
:
v.
:
:
BRIAN CROWE, et al.,
:
:
Defendants.
:
______________________________________________________________________________
ENTRY AND ORDER GRANTING IN PART DEFENDANTS’ MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 12); REMANDING THE
CASE TO THE COMMON PLEAS COURT FOR MONTGOMERY COUNTY,
OHIO FOR ALL FURTHER PROCEEDINGS, INCLUDING CONSIDERATION
OF PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
(DOC. 15); AND TERMINATING THIS CASE ON THE COURT’S DOCKET
______________________________________________________________________________
This case is before the Court on the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
(Doc. 12) filed by Defendants Montgomery County Sheriff Phil Plummer (“Sheriff Plummer”)
and Montgomery County Sheriff’s Deputy Brian Crowe (“Deputy Crowe” and, together with
Sheriff Plummer, the “Sheriff Defendants”). For the reasons stated below, the Court GRANTS
IN PART the Motion to Dismiss. The Court’s decision results in dismissal of the federal claims
upon which its jurisdiction over this action is based. The Court declines to retain jurisdiction over
the remaining claims and therefore REMANDS the case to the Montgomery County Court of
Common Pleas for all further proceedings, including consideration of the pending Motion for
Leave to File Amended Complaint filed by Plaintiff Mark Gilliam (“Gilliam”).1

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The Court acknowledges the valuable contribution and assistance of judicial extern Callum Morris in drafting this
opinion.

I.

BACKGROUND
A. Procedural Posture

Gilliam originally brought this action against the Sheriff Defendants and Busy Bee Auto
Parts & Towing, Inc. (“Busy Bee”) in the Common Pleas Court of Montgomery County, Ohio.
(Doc. 1 at 1.) The Sheriff Defendants removed the case to this Court pursuant to its federal
question jurisdiction under 28 U.S.C. § 1441(a) and supplemental jurisdiction under 28 U.S.C. §
1367(a). (Id.)
On April 27, 2016, Busy Bee filed a motion to dismiss the single claim alleged against it,
which the Court has granted. (Docs. 7, 14.) On May 31, 2016, the Sheriff Defendants filed the
Motion to Dismiss that is now fully briefed and before the Court. (Docs. 12, 16, 18.) After the
Court granted Busy Bee’s motion to dismiss, Gilliam filed a Motion for Leave to File Amended
Complaint (Doc. 15), which is also fully briefed. (Docs. 17, 18.) As discussed below, the Court
will not retain jurisdiction over this action after granting dismissal of Gilliam’s federal claims. As
a result, the Montgomery County Court of Common Pleas may determine upon remand whether
Plaintiff’s Motion for Leave to File Amended Complaint should be granted.
B. Facts Alleged in the Complaint
On January 1, 2015, at approximately 3:00 a.m., Deputy Crowe was called to the scene of a
single vehicle accident on Wagner Ford Road in Montgomery County, Ohio. (Doc. 4, ¶ 8.)
Deputy Crowe found that a single car had crashed into a utility pole and through a fence, and
power lines had fallen across the car. (Id.) Gilliam was still inside the crashed car, but Deputy
Crowe failed to find him—even after the power lines were removed. (Id. at ¶ 9-11.) Deputy
Crowe “cleared the scene of the accident” at 4:30 a.m., still without finding Gilliam inside the car.
(Id., ¶ 12.)
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Busy Bee towed the car, with Gilliam still inside it, to Busy Bee’s lot on Webster Street in
Dayton, Ohio. (Id., ¶ 13.) Six hours later, Busy Bee “agents or employees” discovered Gilliam
inside the car and had him taken to a local hospital. (Id., ¶ 14-15.) Gilliam alleges that he
suffered physical injuries, including pneumothorax, dislocated hip, multiple rib fractures,
acetabular fracture, and wrist fracture as a result of Defendants’ failure to find him inside the car at
the scene of the accident. (Id. at ¶ 16.).
II.

STANDARD OF REVIEW

The Sheriff Defendants bring their Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to state a claim upon which relief may be granted. Under Fed. R. Civ. P. 8(a), a
pleading must contain a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Although this pleading standard 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When considering a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations of material
fact as true and construes them in the light most favorable to the non-moving party. Twombly,
550 U.S. at 554-55; see also Top Flight Entm’t, Ltd. V. Schuette, 729 F.3d 623, 630 (6th Cir. 2013).
The Court need not accept as true, however, “a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Thus, a
pleading that offers only a “formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
To 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.’” Ashcroft, 556 U.S. at 678.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
III.

ANALYSIS
A. Overview of Gilliam’s Claims Against the Sheriff Defendants

For purposes of the Court’s analysis, the claims asserted against the Sheriff Defendants are
categorized as follows: (1) a claim for infringement of Gilliam’s Fourteenth Amendment rights
in violation of 42 U.S.C. § 1983 against Deputy Crowe in his individual capacity, (2) a claim for
infringement of Gilliam’s Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. §
1983 against Sheriff Plummer in his individual capacity, (3) claims for infringement of Gilliam’s
Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983 against the Sheriff
Defendants in their official capacities, and (3) claims for negligence, gross negligence, and
recklessness against the Sheriff Defendants in violation of Ohio common law. (Doc. 4 at
¶¶17-31.) The Court addresses each category of claims in turn below.
B. The § 1983 Claim Against Deputy Crowe In His Individual Capacity
Gilliam alleges that Deputy Crowe is liable under 42 U.S.C. § 1983 in his individual
capacity for deprivation of his rights, privileges and immunities under the Fourteenth Amendment.
Specifically, Gilliam alleges that Deputy Crowe negligently, with gross negligence, and/or
recklessly failed to (a) properly inventory the crashed vehicle; (b) follow normal and accepted
practices and procedures of Montgomery County Sheriff’s Office; (c) remove Plaintiff from a
position of peril; (d) provide adequate and proper emergency care and treatment; and (e) provide
adequate and proper medical care and treatment. (Doc. 4 at ¶¶ 18-19.)
Deputy Crowe argues that this claim fails as a matter of law because he is entitled to
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qualified immunity. (Doc. 12 at 4.) A civil rights claim against a law enforcement officer in his
individual capacity does implicate qualified immunity—“a defense not just against liability, but
against the suit itself.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015), citing Pearson v.
Callahan, 555 U.S. 223, 231 (2009).

Due to the complete defense provided by qualified

immunity, the Sixth Circuit has advised that “insubstantial claims against government officials
should be resolved as early in the litigation as possible, preferably prior to broad discovery.”
Johnson, 790 F.3d at 653.
Once the defense of qualified immunity has been raised, it is the plaintiff’s burden to show
that the defendant is not entitled to qualified immunity. Johnson, 790 F.3d at 653. At the
pleading stage, the plaintiff may carry this burden “by alleging facts plausibly making out a claim
that the defendant’s conduct violated a constitutional right that was clearly established law at the
time, such that a reasonable officer would have known that his conduct violated that right.” Id.,
(citing Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir.2015)). “Unless the plaintiff’s allegations
state a claim of violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985).
The Due Process Clause of the Fourteenth Amendment does not impose an affirmative
duty on the State to protect citizens from “private violence.” DeShaney v. Winnebago Cty. Dep’t
of Soc. Servs., 489 U.S. 189, 196-97 (1989). Accordingly, the Sixth Circuit has held that “[i]t is
not a constitutional violation for a state actor to render incompetent medical assistance or fail to
rescue those in need.” Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005). There are two
exceptions to this rule, “(1) the custody exception and (2) the state-created danger exception.” Id.
(citing DeShaney, 489 U.S. at 199-201).
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Gilliam argues that the “state-created danger exception” applies in this case. (Doc. 16 at
3-4.) “For the state-created danger exception to apply, the plaintiff must allege: 1) an affirmative
act that creates or increases a risk that the [plaintiff] would be exposed to private acts of violence;
2) a special danger to the [plaintiff], such that the defendant[’s] acts placed [plaintiff] specifically
at risk; and 3) that [the] defendant[] knew or should have known [his] actions specifically
endangered the [plaintiff].” Carver v. City of Cincinnati, 474 F.3d 283, 286 (6th Cir. 2007). The
Sixth Circuit has further stated that a “state-created danger” exists only when “the government
could have specified whom it was putting at risk, nearly to the point of naming the possible victim
or victims.” Jones v. Reynolds, 438 F.3d 685, 696 (6th Cir. 2006); see also Caldwell v. City of
Louisville, 120 Fed.Appx. 566, 573 (6th Cir. 2004); Waller v. Trippett, 49 Fed.Appx. 45, 50 (6th
Cir. 2002); Duvall v. Ford, 187 F.3d 635 (6th Cir.1999); Kallstrom, 136 F.3d at 1067).
Gilliam asserts that Deputy Crowe’s affirmative act was calling Busy Bee to tow the
vehicle while he was still inside. (Doc. 16 at 4 (citing Doc. 15-1 at ¶ 13).)2 Gilliam argues that
this act created a special danger to him, and that Deputy Crowe knew or should have known that he
was in the vehicle and that towing the vehicle with him inside was likely to injure him. (Id.)
The Sixth Circuit has held twice that allegations similar to those made by Gilliam are
insufficient to establish § 1983 liability under the state-created danger doctrine. See Willis v.
Charter Twp. of Emmett, 360 F. App’x 596, 602 (6th Cir. 2010) (police officer and firefighter did
not expose plaintiff to private acts of violence “by making it less likely that he would receive
treatment or delaying the treatment he eventually received”); Jackson v. Schultz, 429 F.3d 586, 591

2

This allegation does not appear in the Complaint (Doc. 4), but is an addition to Gilliam’s proposed Amended
Complaint (Doc. 15-1). In ruling on the Sheriff Defendants’ Motion to Dismiss, the Court has considered the
allegations in the proposed Amended Complaint (Doc. 15-1) to the extent that Gilliam has relied on them in his
memorandum in opposition (Doc. 16).

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(6th Cir. 2005) (EMTs not liable under the state-created danger doctrine for moving plaintiff, a gunshot
victim, to an ambulance where he died because he was not administered life support).
The Sixth Circuit’s decision in Willis is particularly apposite here. In Willis, the plaintiffs
were representatives of the estate of Christopher Willis, who died from injuries sustained in a severe
car accident. 360 F. App’x at 598. While driving on the interstate, Willis had lost control of his
pickup truck, crossed the median and became airborne, collided with a semi-truck, and then “flew
over” another car before coming to rest upside down. Id. Bishop, a firefighter and police officer,
was one of the first responders to the scene. Id. Bishop was told that Willis did not have a pulse and,
having observed the damage to his truck, concluded that Willis did not survive the accident. Id. A
firefighter named Counts was another first responder who was told that Willis did not have a pulse.
Id. Bishop and Counts informed paramedics at the scene that Willis did not have a pulse; and Bishop
reported to others that Willis had died. Id.
Based at least partially on Bishop’s and Count’s statements, everyone arriving at the scene
assumed that Willis was dead and did not render him aid. Id. at 599. Over two hours later, Willis’s
pickup truck was secured to a tow truck so that responders could remove his body. Id. During that
process, it was discovered that Willis was still breathing. Id. Willis was then transported to a
hospital, where he later died. Id.

The Willis plaintiffs sued Bishop and Counts under 42 U.S.C. § 1983 for deprivation of
Willis’s constitutional rights under the state-created danger exception. Id. at 601. In light of the
above facts, however, the Sixth Circuit held that the exception did not apply because defendants
“did not affirmatively act to expose [Willis] to private acts of violence nor did they have the
requisite degree of culpability.” Id. The plaintiffs had alleged nothing more than a failure to act,
which cannot be the basis of a § 1983 claim. Id. (citing cases). Even if the defendants’ conduct

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“blurred the line between affirmative acts and the failure to act,” plaintiffs still failed to satisfy the
first prong of the test because defendants did not make Willis “less safe by increasing the risk that
he would be exposed to private acts of violence.” Id.
Plaintiffs had argued that “the extended period of time during which [Willis] was left
untreated and the jostling of the cab of his pickup when it was secured for towing satisfy the
private acts of violence requirement.” Id. The Sixth Circuit rejected this argument, holding that
that “neither of these circumstances amount to private acts of violence.” Id., citing Jackson, 429
F.3d at 591 (moving decedent to a location where it was less likely that he would receive aid did
not constitute exposing him to private acts of violence); Peete v. Metro. Gov’t of Nashville &
Davidson County, 486 F.3d 217, 223 (6th Cir. 2007) (seizure victim was not exposed to private
acts of violence when emergency personnel restrained him without leaving a clear passage for him
to breathe).
The facts alleged in this case fall squarely within the Sixth Circuit’s analysis of the
affirmative act requirement in Willis. Gilliam essentially alleges a failure to act, namely that
Deputy Crowe failed to find him inside the crashed vehicle. However, as it is undisputed that a
failure to act is not actionable under § 1983, Gilliam instead asserts that Deputy Crowe committed
the affirmative act of calling Busy Bee to tow the crashed vehicle. But even this allegation does
not state a claim under the Sixth Circuit’s reasoning in Willis, as neither Gilliam’s exposure to any
jostling or disturbance while the vehicle was towed nor any delay in his treatment amounts to a
“private act of violence” under the state-created danger exception. Consequently, Gilliam has
failed to allege an affirmative act under the first prong of the state-created danger test.
Since the Complaint fails to state a claim against Deputy Crowe under the state-created
danger exception, it follows that Gilliam also has not alleged the violation of a constitutional right
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that was “clearly established law at the time, such that a reasonable officer would have known that
his conduct violated that right.” Johnson, 790 F.3d at 653. Deputy Crowe is therefore entitled to
dismissal of Gilliam’s § 1983 claim on qualified immunity grounds.
C. The § 1983 Claim Against Sheriff Plummer In His Individual Capacity
Gilliam alleges that Sheriff Plummer is liable for violation of Gilliam’s rights under the
Fourth and Fourteenth Amendments based on two theories of liability: respondeat superior and
failure to properly train, supervise and control Deputy Crowe’s conduct. (Doc. 4 at ¶¶ 23-25, 29.)
As Gilliam has failed to allege facts stating a claim under § 1983, this claim will be dismissed.
Section 1983 liability “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) (citing Hays v.
Jefferson Cty., 668 F.2d 869, 874 (6th Cir. 1982)). Thus, a supervisor’s failure to train, supervise,
or control an employee’s conduct is not actionable unless the supervisor “either encouraged the
specific incident of misconduct or in some other way directly participated in it.” Id. “At a
minimum a plaintiff must show that the official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the offending officers.”

Hays v.

Jefferson County, Kentucky, 668 F.2d 869, 874 (6th Cir. 1982).
Here, Gilliam has not alleged facts, as opposed to conclusory statements, showing that
Sheriff Plummer authorized, approved, or knowingly acquiesced in Deputy Crowe’s allegedly
unlawful conduct. Gilliam’s § 1983 claim against Sheriff Plummer therefore amounts to an
“unadorned, the-defendant-unlawfully-harmed-me accusation” insufficient to withstand a Rule
12(b)(6) motion to dismiss. Ashcroft, 556 U.S. at 678 (2009).

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D. The § 1983 Claims Against the Sheriff Defendants In Their Official
Capacities
In addition to the above claims, Gilliam also brings § 1983 claims against the Sheriff
Defendants in their official capacities. A § 1983 claim against a government official in his
official capacity is a claim against the local government entity. Kentucky v. Graham, 473 U.S.
159, 165-66 (1985). As a result, Gilliam’s claims against the Sheriff Defendants in their official
capacities must be construed as claims against Montgomery County.
To state a claim against a local government entity under 42 U.S.C. § 1983, a plaintiff must
allege that his “constitutional rights were violated and that a policy or custom of the municipality
was the ‘moving force’ behind the deprivation of plaintiff’s rights.” Miller v. Sanilac Cty., 606
F.3d 240, 254-55 (6th Cir. 2010); see also Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). A local government may not be sued under § 1983 solely on a theory of
respondeat superior or merely because its employees or agents inflicted an injury on the plaintiff.
See Monell, 436 U.S. at 694; Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006).
Municipal liability will attach only when a deliberate choice has been made to follow a particular
course of action over an alternative course of action. See Pembaur v. City of Cincinnati, 475 U.S.
469, 483 (1986).
Here, Gilliam does not identify any specific policy or custom responsible for his injuries.
Rather, he alleges only that Sheriff Plummer failed to properly train, supervise and control Deputy
Crowe’s conduct. (Doc. 4 at ¶ 23.) “Allegations that a particular officer was improperly trained
are insufficient to prove liability, as are claims that a particular injury could have been avoided
with better training.” Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998). To
establish a claim based on the failure to train municipal employees, such as police officers, the

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plaintiff must show that “the municipality’s failure to train its employees in a relevant respect
evidences a ‘deliberate indifference’ to the rights of its inhabitants.” City of Canton, Ohio v.
Harris, 489 U.S. 378, 389 (1989).

To establish deliberate indifference a plaintiff must

demonstrate that the government entity either “(1) failed to provide adequate training [or
supervision] in light of foreseeable consequences that could result from the lack of instruction [or
supervision]; or (2) failed to act in response to repeated complaints of constitutional violations by
its officers.” Rodriguez v. City of Cleveland, 619 F. Supp. 2d 461, 482 (N.D. Ohio 2009) (internal
quotations omitted) (quoting in part Brown v. Shaner, 172 F.3d 927, 931 (6th Cir.1999)).
Gilliam has not pled facts from which it may be inferred that Montgomery County adopted
a policy or custom that caused his alleged injuries, much less that it adopted such policy or custom
with deliberate indifference to any foreseeable consequences. As the Complaint’s allegations fail
to meet the standard for pleading a § 1983 claim against a government entity, Gilliam’s claims
against the Sheriff Defendants in their official capacities are dismissed.
E. Gilliam’s Claims Against the Sheriff Defendants Under Ohio Law
Gilliam alleges claims against the Sheriff Defendants under Ohio law. However, having
dismissed all of the federal claims upon which the Court’s jurisdiction is based, the Court declines
to consider the merits of the motion to dismiss Gilliam’s state law claims. “[A] district court has
discretion to remand to state court a removed case involving pendent claims upon a proper
determination that retaining jurisdiction over the case would be inappropriate.” Carnegie-Mellon
University v. Cohill, 484 U.S. 343, 357 (1988). Here, the Court deems it appropriate to remand
this case to the Montgomery County Court of Common Pleas and permit that court to consider the
merits of the Sheriff Defendants’ Motion to Dismiss the remaining state law claims.

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F. Gilliam’s Motion for Leave to Amend Complaint
As noted in the background section above, Gilliam has moved for leave to file an Amended
Complaint to remedy the deficiencies in his claim against Busy Bee. (Doc. 15.) The claim
against Busy Bee, as alleged in the proposed Amended Complaint (Doc. 15-1), is a negligence
claim under Ohio law. It is therefore appropriate that, upon remand, the Montgomery County
Court of Common Pleas should decide whether Gilliam should be permitted to amend the
Complaint as to that claim.
IV.

CONCLUSION

For the reasons stated above, The Sheriff Defendants’ Motion to Dismiss for Failure to
State a Claim (Doc. 12) is GRANTED IN PART. All of the claims alleged against the Sheriff
Defendants in their individual and official capacities under 42 U.S.C. § 1983 are hereby
DISMISSED. The Court REMANDS this case to the Montgomery County Court of Common
Pleas for all further proceedings, including consideration of Gilliam’s Motion for Leave to File
Amended Complaint (Doc. 15). The Clerk is ordered to TERMINATE this case on the docket of
this Court.
DONE and ORDERED in Dayton, Ohio, this Wednesday, July 27, 2016.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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