Sailor v. City of Cleveland

OPINION AND ORDER

CHRISTOPHER A. BOYKO Senior United States District Judge

Before the Court is Defendant City of Cleveland's Motion for Judgment on the Pleadings (Doc. 14). The City argues that Plaintiff Ru-el Sailor has not stated a plausible claim for municipal liability under Monell v. Dept. of Soc. Servs., 463 U.S. 658 (1978). The Court agrees and therefore Grants the City's Motion. And although Plaintiff improperly requested leave to file an amended Complaint, the Court authorizes Plaintiff to file a Motion for Leave to file an Amended Complaint by October 14, 2021.

I. Background Facts

In 2003, Plaintiff was convicted for the murder of Omar Clark. However, that conviction was wrongful. And in March of 2018, the State of Ohio vacated the conviction and released Plaintiff from prison. Plaintiff primarily blames the individual police officers for their role in procuring his wrongful conviction. Accordingly, he filed this lawsuit against eight of those officers for their respective roles in the ‘investigation' (the “Defendant Officers”).

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But Plaintiff also seeks to hold the City liable for the acts of its officers. According to Plaintiff, the City had a policy that allowed officers to obtain wrongful convictions via a myriad of ways. While these policies were not written, Plaintiff alleges they have been in place since the 1960s and 1970s. And because of these policies, the Defendant Officers could violate Plaintiff's constitutional rights.

The City disagrees and claims that the Complaint fails to state a claim against the City as a matter of law. (Doc. 14). Plaintiff opposed (Doc. 23) and the City replied thereafter (Doc. 25). Plaintiff then requested leave to file a Sur-Reply, which the Court granted. (Docs. 26, 26-1 & Non-Doc. Entry 7/27/2021).

II. Law & Analysis

A. Standard of Review

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). In this jurisdiction,

[t]he standard of review for a judgment on the pleadings is the same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)…We construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief

Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 389 (6th Cir. 2007) (citations omitted). The court need not accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Bus. Servs., 135 F.3d 389, 405 (6th Cir. 1998).

The pleading does not have to demonstrate probability; rather, “just enough factual information to create an expectation that discovery will uncover evidence supporting the claim.” Haber v. Rabin, 2016 WL 3217869, at *3 (N.D. Ohio June 10, 2016) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In other words, the complaint must state a plausible

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claim for relief. “Plausibility is a context-specific inquiry, and the allegations in the complaint must ‘permit the court to infer more than the mere possibility of misconduct,' namely, that the pleader has ‘shown' entitlement to relief.” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). While Twombly and Iqbal have set this plausibility standard, the Sixth Circuit “has cautioned against reading ‘Twombly and Iqbal so narrowly as to be the death of notice pleading…'” Rhodes v. R & L Carriers, Inc., 491 Fed. App'x 579, 583 (6th Cir. Aug. 6, 2012) (quoting Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012)). “If a reasonable court can draw the necessary inference from the factual material stated in the complaint, the plausibility standard has been satisfied.” Keys, 684 F.3d at 610.

Dismissal is warranted if the complaint lacks an allegation as to a necessary element of the claim raised. Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-90 (6th Cir. 1990). Lastly, a Rule 12(c) motion “is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. City of Cleveland Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991).

B. Monell Standard

A city may only be held liable for the constitutional violations of its employees under 42 U.S.C. § 1983 if those actions are the result of a practice, policy, or custom of the municipality itself. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). To adequately plead a claim for municipal liability under Monell, Plaintiffs must “identify the policy, connect the policy to the entity itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6^th Cir. 1993).

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There are four types of municipal action that, if they cause the underlying constitutional violation, can demonstrate that the municipality had an unlawful policy or custom: “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019) (quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)).

Monell claims are not subjected to a higher pleading standard. Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). Rather, the plausibility standard of Twombly and Iqbal discussed above applies. Bailey v. City of Ann Arbor, 860 F.3d 382, 388-89 (6th Cir. 2017). However, the broad assertion that an unconstitutional policy exists “is nothing more than a bare recitation of legal standards” and is insufficient. Brown v. Cuyahoga Cty., 517 Fed. App'x 431, 436 (6th Cir. Mar. 15, 2013); see also Burgess, 735 F.3d at 478 (failure to point to a pattern of a custom or prior unconstitutional conduct subjects it to dismissal).

Based on Plaintiff's briefing, he clearly believes that he adequately pled each of the four potential bases for municipal liability under Monell. The Court disagrees. Really Plaintiff relies on an unwritten custom that was so wide-spread and well-established, that it essentially became the City's policy. However, as discussed below, this argument fails to support a claim that a custom of constitutional rights violation existed at the time of Plaintiff's investigation.

C. Plaintiff's Complaint

Plaintiff alleges that he fell victim to a widespread and clear policy whereby “officers regularly used unconstitutional measures to falsely implicate criminal suspects, including by

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withholding and/or suppressing exculpatory evidence, fabricating evidence, feeding information to witnesses, engaging in unduly suggestive identification and lineup procedures, and engaging in leading, coercive and unduly suggestive questioning of and contact with witnesses.” (Doc. 1, PageID: 19, ¶ 148). This policy existed for over 30 years - “as far back as the 1970s and continued through the time of the investigation and prosecution of Plaintiff.” (Id. at ¶ 149). In essence then, Plaintiff alleges that, for a continuous 30-year period, the City of Cleveland and its police department maintained an unwritten policy to “pursue wrongful convictions[.]” (Id. at PageID: 29, ¶ 179).

In supporting these allegations, Plaintiff neither cites a specific legislative enactment nor police department policy. Nor does he name a specific policymaker or official with final decision-making authority. And finally, Plaintiff does not discuss a specific inadequate training program or manual.

Instead, Plaintiff relies on unwritten, “widespread, clear and persistent patterns and practices” that have essentially become official policies, sanctioned by a ‘senior-clique' of policymakers within the Cleveland Department of Police. These unconstitutional practices were so well-known and widespread that the City should have implemented better training instead of merely acquiescing to the policies' existence.

Plaintiff is correct in that a custom of tolerating civil rights violations may demonstrate municipal policy. Bd. of Cty. Comm'r of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997); Meyers v. City of Cincinnati, 14 F.3d 1115, 1120 (6th Cir. 1994). But the custom must be so “extensive as to still be attributable to the municipality as a whole.” Lipman v. Budish, 974 F.3d 726, 748 (6th Cir. 2020); Brown, 520 U.S. at 404 (the relevant custom “is so widespread as to have the force of law”); Phillips v. City of Cincinnati, 479 F.Supp.3d 611, 634 (S.D. Ohio 2020) (a city's

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custom that may form the basis of liability in a § 1983 claim must “be so permanent and well settled as to constitute a custom or usage with the force of law”). This typically entails a showing that a “clear and persistent pattern of unlawful activity” existed and “that [the city] tacitly approved” the activity. Howse v. Hodus, 953 F.3d 402, 411 (6th Cir. 2020).

Plaintiff has failed to allege an extensive, widespread and well-settled custom supported with sufficient facts to show a clear and persistent pattern of unlawful activity approved by the City. Plaintiff starts with evidence from the 1960s and 1970s - a Public Administration Service Report on the Cleveland Division of Police (1966); an autobiography of Mayor Carl Stokes (1973); a Cleveland Crime Commission Report (1974); and a Cleveland Foundation Report (1975). (Doc. 1, ¶¶ 160(a)-(b),...