Lohr v. Kiefer-Erb

1

Robert L. Lohr, et al., Plaintiffs, v. Michelle Kiefer-Erb, et al., Defendants.

No. 2:19-cv-3755

United States District Court, S.D. Ohio, Eastern Division

June 7, 2023

Jolson Magistrate Judge

OPINION AND ORDER

JAMES L. GRAHAM UNITED STATES DISTRICT JUDGE

Plaintiffs Robert Lohr and Derek Vanhorn bring this action under 42 U.S.C. § 1983, alleging that they were the victims of sexual assaults committed by defendant Michelle Kiefer-Erb while they were incarcerated at the Washington County Jail in 2017 and 2018. Kiefer-Erb, who was a nurse at the Jail pleaded guilty in state court to committing sexual battery against Mr. Lohr and was sentenced to 42 months of incarceration.

Also named as defendants are Washington County and various county officials sued in their official capacities only. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.”). Plaintiffs assert a Monell claim against the County alleging that it is responsible for a practice of failing to adequately supervise Kiefer-Erb. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).

Before the Court are two motions filed by the County. One is a motion for judgment as a matter of law on the grounds that plaintiffs failed to exhaust their administrative remedies under the Prison Reform Litigation Act, 42 U.S.C. § 1997e(a). Secondly, the County has filed a revised motion for summary judgment, arguing that defendant Lieutenant Matthew Martin, the official who allegedly failed to supervise Kiefer-Erb, was not a final policymaker for purposes of Monell liability.

For the reasons set forth below, the Court denies the motion for judgment as a matter of law because the County waived the affirmative defense of PLRA exhaustion. The Court, however grants the revised motion for summary judgment, finding that Lt. Martin lacked final policymaking authority regarding Kiefer-Erb.

I. Background

In a prior Opinion and Order, the Court granted in part and denied in part the County's original motion for summary judgment. See Doc. 76. The motion was granted as to the aspects of plaintiffs' Monell claim which alleged the existence of an unlawful official policy and the failure to train. It was also granted as to plaintiffs' state law claims. The motion was denied as to the aspect of plaintiffs' Monell claim which alleged that the County failed to adequately supervise Kiefer-Erb and had acquiesced in her unlawful conduct.

The Court then conducted a Final Pretrial Conference and two additional telephone conferences with the parties. In these conferences, two important unresolved legal issues were identified. The first was whether plaintiffs had exhausted their administrative remedies under the PLRA, and, if not, whether the County had waived the exhaustion defense. The second was whether Lt. Martin possessed sufficient final policymaking authority for his failure to supervise Kiefer-Erb to represent the policy or practice of Washington County.

Because the issues are ones of law for the Court to decide, the Court continued the jury trial and invited motions, supplemental briefing and evidence on those two issues. See Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015); McGuire v. City of Sweetwater, Tennessee, No. 20-6067, 2021 WL 3620449, at *3 (6th Cir. Aug. 16, 2021) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

II. PLRA Exhaustion

The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). It is now undisputed on the factual record that plaintiffs did not exhaust their administrative remedies at the Washington County Jail. This typically would require the dismissal of their § 1983 suit.

Plaintiffs argue that the County has waived exhaustion as an affirmative defense because the County failed to assert the defense in its Answer to the Complaint. Plaintiffs further argue that their failure to exhaust is excusable because they likely faced serious, and perhaps physically violent, retribution had they complained of Kiefer-Erb, who was in a romantic relationship with Lt. Martin. See Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014) (“[W]e have excused a prisoner's lack of complete compliance when the improper actions of prison officials render the administrative remedies functionally unavailable.”).

The Court finds it necessary to address only plaintiffs' first argument, one on which they prevail. The exhaustion requirement is not jurisdictional, but is an affirmative defense that may be waived. Jones v. Bock, 549 U.S. 199, 216 (2007); Lee, 789 F.3d at 678. An affirmative defense is waived by a defendant if it is not timely asserted. Haskell v. Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988). The County did not raise failure to exhaust as an affirmative defense in its Answer. See Doc. 16. The County also failed to raise the exhaustion issue in its original motion for summary judgment and in its final pretrial statement, where it was required to list the remaining issues of fact and law for trial. See Docs. 68, 82. Only after the Court identified the exhaustion issue as a potential concern at the time of the Final Pretrial Conference did the County seek to assert it as a defense, providing no justification for the delay. See Doc. 83.

The Court thus finds that the County waived PLRA exhaustion as an affirmative defense because it waited to assert the defense until three years after the suit was filed and just one month before the scheduled trial. See Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 750-51 (6th Cir. 2015) (district court may find that an affirmative defense is waived if it is not affirmatively pleaded, defendant offered no justification for failing to plead it, and defendant waited until after the close of discovery to raise the defense, resulting in potential prejudice to plaintiff); see also Allah v. Blaine, No. 03-4062, 2005 WL 8131861, at *1 (3d Cir. Dec. 21, 2005) (“To preserve the [PLRA exhaustion] defense, so as to avoid prejudice to the plaintiff and to conserve judicial resources, a defendant must raise a nonjurisdictional defense early in litigation.”).

The Court further rejects the County's request for leave to amend its Answer to add failure to exhaust as an affirmative defense. The County may not avoid the consequence of its waiver by amending its Answer at this late stage.

Accordingly, the County's motion for judgment as a matter of law on the PLRA exhaustion issue is denied.

III. Motion for Summary Judgment Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary materials in the record show that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of law, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might affect the outcome of the suit under the governing law,' will preclude summary judgment.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at 248). Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).

A district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).

IV. Monell Liability

A. Prior Summary Judgment Ruling

In order to prevail on a Monell claim for municipal liability, plaintiffs must show that their injuries were caused by a constitutional violation and that the municipality is responsible for the violation....