Marie Moderwell v. Cuyahoga Cnty., Ohio ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0104p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARIE MODERWELL, Administrator of the Estate of ┐
Larry C. Johnson, deceased, │
Plaintiff-Appellee, │
│
│
v. > No. 20-3879
│
│
CUYAHOGA COUNTY, OHIO, et al., │
Defendants, │
│
│
ARMOND D. BUDISH; CLIFFORD PINKNEY; GEORGE
│
TAYLOR; BRANDY CARNEY; JOSEPH JOHNSTON;
│
RONALD CHANNELL; ANTER MILLER; KURT EMERSON,
│
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:19-cv-00613—Christopher A. Boyko, District Judge.
Decided and Filed: May 12, 2021
Before: COLE, CLAY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Brendan D. Healy, CUYAHOGA COUNTY PROSECUTOR’S OFFICE,
Cleveland, Ohio, for Appellants. Meaghan VerGow, Ashley Robertson, O’MELVENY &
MYERS LLP, Washington, D.C., Steven J. Olson, O’MELVENY & MYERS LLP, Los Angeles,
California, Thomas D. Robenalt, ROBENALT LAW FIRM, Westlake, Ohio, Samuel Weiss,
RIGHTS BEHIND BARS, Washington, D.C., for Appellee.
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. On June 29, 2018, Larry Johnson, a pretrial detainee at the
Cuyahoga County Correctional Center (“CCCC”), hanged himself. Marie Moderwell, the
administrator of Johnson’s estate, filed this 42 U.S.C. § 1983 suit against twenty-one defendants.
After answering the Amended Complaint, four CCCC correctional officers moved the district
court for partial judgment on the pleadings and four Cuyahoga County officials moved for
judgment on the pleadings. The district court granted in part and denied in part the motions, and
Defendants appealed. For the reasons set forth below, we AFFIRM the district court’s decision.
BACKGROUND
A. Factual Background
In January 2015, Defendant Armond Budish became the Cuyahoga County Executive.
To increase revenue for the County, Budish developed a plan for the “regionalization” of the
County’s jails. (R. 55 at PageID# 294.) In essence, the regionalization plan called for CCCC to
house detainees and prisoners from nearby communities in exchange for significant sums of
money.
However, CCCC was already severely overcrowded and understaffed. For example, even
before the regionalization plan began, the CCCC nursing director, Marcus Harris, complained
that inmates were “not being given critical healthcare and that one nurse was doing as many as
100 intake assessments a day.” (Id.) When no action was taken in response to his complaints,
Harris resigned. Around the same time, the union representing the CCCC correctional officers
“complained to the County that there were serious staffing level problems and health and safety
problems at” CCCC. (Id. at PageID## 294–95.)
Nonetheless, in March 2018, the first stage of regionalization began with the transfer of
City of Cleveland inmates and detainees to CCCC. By May 22, 2018, the Cuyahoga County
Council agreed that the issues at CCCC, including the understaffing, were “mission critical.”
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 3
(Id. at PageID# 295.) At the Council meeting, Gary Brack, a former CCCC medical supervisor,
informed the Council that CCCC had a “nursing crisis.” (Id.) Brack informed the Council that
Budish fired him after his many requests for more nurses were denied. After the meeting,
Council members sent a letter to Budish stating that the situation at CCCC was “a life-or-death
issue.” (Id. at PageID# 296.) Budish took no action in response to the letter. Even after a CCCC
inmate, Theodore Carter, died on June 10, 2018, from a lack of medical care, the situation at
CCCC was not addressed.
On June 20, 2018, Johnson was detained at CCCC while awaiting trial on allegations of
petty theft. During his intake assessment, a nurse noted that he was “likely a suicide risk because
he had attempted to harm himself in the past.” (Id. at PageID# 297.) Allegedly due to a custom
or policy of ignoring such medical conditions, no protective action or treatment was taken in
response. Three days later, Johnson told a nurse that he was “suicidal.” (Id.) Again, no action
was taken in response. Defendants Joseph Johnston, Ronald Channell, Anter Miller, and Kurt
Emerson, all CCCC correctional officers (“Corrections Defendants”), were aware that Johnson
was a suicide risk.
On June 29, 2018, Johnson was caught allegedly trying to steal food from the CCCC
commissary. According to Plaintiff, Warden Eric Ivey was “known to deprive food to inmates
and that is likely what caused Larry Johnson to try and steal food.”1 (Id. at PageID# 297.)
Despite knowing that he was a suicide risk, the Corrections Defendants placed Johnson in
solitary confinement. He did not receive an assessment or medical treatment, and no one
checked in on him. Late that evening, Johnson was found hanging in the cell. Because CCCC
lacked a device with which to cut him down, Johnson was left hanging even after he was
discovered. On July 1, 2018, Johnson died from his injuries.
Shortly after Johnson’s death, the United States Department of Justice conducted a
review of CCCC. See Dep’t of Justice, U.S. Marshal, Quality Assurance Review: Cuyahoga
County Correctional Center (Oct. 30-Nov. 1, 2018), https://tinyurl.com/y7gcmzc4 (“DOJ
1Ivey is a defendant in the case below but is not part of this appeal.
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 4
Report”).2 The subsequent report detailed the appalling conditions at CCCC. When it came to
ensuring “safe, secure, and humane confinement,” CCCC’s “overall facility operation received a
rating of ‘Unsatisfactory/At-Risk.’” DOJ Report at 3.
Among many issues at CCCC, the report highlighted the facility’s “inadequate medical
program.” Id. at 4. For example, numerous members of the medical staff lacked proper licenses,
comprehensive mental health appraisals were not conducted in a timely manner, and there was
no mental health nurse practitioner. See id. at 30–33. Additionally, CCCC correctional officers
received only eight hours of annual training, which included no training on medical emergency
procedures or on the supervision of detainees. See id. at 28. The report also discussed “[t]he
intentional and deliberate use of food as a punitive measure.” Id. at 4.
Moreover, CCCC housed 2,420 inmates and detainees even though its capacity was only
1,765, and there were 96 correctional officer vacancies. See id. at 6. The overcrowding was so
severe that residents, including two pregnant women, were observed sleeping on mattresses on
the floor. See id. at 5. And according to the Cuyahoga County Court of Common Pleas,
“shortage of staffing in the jail contributes to a lack of identification of people who need medical
and psychiatric care upon booking.” (R. 55 at PageID# 299.)
The report also documented “CCCC’s implementation of a lockdown system known as
‘Red Zone,’” and its use “as a means to address insufficient staff and staffing shortages.” DOJ
Report at 4. According to the report, detainees in the Red Zone “are locked down for periods of
27 or more hours in their cells,” are denied access to necessities including toilet paper, and
CCCC refused to “install shower curtains for detainees/inmates housed in the ‘Red Zone.”’ Id.Detainees in the Red Zone do not receive a daily visit from medical staff. See id. at 41. At the
time of Johnson’s detention, there was also no schedule for observing detainees in the Red Zone.
See id. at 42.
2By extensively relying on, and quoting from, the DOJ Report, the Amended Complaint adopted the DOJ
Report by reference, and we may properly consider its contents. See Commercial Money Ctr., Inc. v. Illinois Union
Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007); Fed. R. Civ. P. 10(c). Although Defendants do not challenge
Plaintiff’s reliance on the DOJ Report, they do argue that Plaintiff’s references to four news articles should be
stricken. Because these news articles were not included in the pleadings, we do not consider this outside evidence.
See Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483–84 (6th Cir. 2020).
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 5
The conditions at CCCC, both before and after regionalization, had severe consequences.
Between June and October 2016, a period prior to the implementation of the regionalization plan,
six people housed at CCCC died. See id. at 33. One death was confirmed a suicide, but because
CCCC failed to conduct mortality reviews, the cause of death for the other five is unknown.3 See
id. at 33. In the year prior to the DOJ’s review, a period that includes the implementation of the
regionalization plan, the report detailed 55 suicide attempts at CCCC, and three completed
suicides, including Johnson’s. See id. at 25. In the eight months between Johnson’s death and
the initiation of this action, at least six more CCCC residents died from injuries sustained at
CCCC.
B. Procedural Background
On March 19, 2019, Moderwell filed suit in the district court under 42 U.S.C. § 1983.
Two groups of defendants are relevant to the present appeal: 1) the Corrections Defendants; and
(2) Budish; Clifford Pinkney, the Cuyahoga County Sheriff; George Taylor, who was Pinkney’s
immediate assistant; and Brandy Carney, the Cuyahoga County Chief Safety Protection Officer
(“Executive Defendants”).
On January 14, 2020, the Corrections Defendants moved the district court for partial
judgment on the pleadings in their favor and the Executive Defendants moved the district court
for judgment on the pleadings in their favor. The district court granted in part and denied in part
both motions. See Moderwell v. Cuyahoga County, No. 19-613, 2020 WL 4726458, at *1 (N.D.
Ohio Aug. 14, 2020); Moderwell v. Cuyahoga County, No. 19-613, 2020 WL 4726456, at *1
(N.D. Ohio Aug. 14, 2020). As to Plaintiff’s claims under both the Eighth Amendment and
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the district court granted judgment to both
the Corrections and Executive Defendants. See Moderwell, 2020 WL 4726458, at *2–3;
Moderwell, 2020 WL 4726456, at *2–3. The district court also dismissed Plaintiff’s excessive
force claim against the Executive Defendants. See Moderwell, 2020 WL 4726456, at *4.
However, the district court concluded that Plaintiff “sufficiently alleged a § 1983 claim of
excessive force as against the Correction[s] Defendants,” Moderwell, 2020 WL 4726458, at *4,
3Ivey has since pleaded guilty to obstructing justice by deleting video surveillance of inmate deaths.
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 6
and “sufficiently alleged a § 1983 claim of deliberate indifference to serious medical needs” and
“set forth a plausible Supervisory Liability Claim” against the Executive Defendants, Moderwell,
2020 WL 4726456, at *5–6. Recognizing that this Court has cautioned against dismissing a case
on qualified immunity grounds based only on the pleadings, the district court also held that
dismissal of these claims based on qualified immunity “is improper at this juncture.” Moderwell,
2020 WL 4726458, at *4; Moderwell, 2020 WL 4726456, at *6.
This timely appeal followed.4
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed--but
early enough not to delay trial--a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). “We review de novo a judgment on the pleadings granted pursuant to Rule 12(c)
. . . using the same standard that applies to a review of a motion to dismiss under Rule 12(b)(6).”
Moore, Successor Tr. of Clarence M. Moore & Laura P. Moore Tr. v. Hiram Twp., 988 F.3d
353, 357 (6th Cir. 2021) (citing Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d
383, 389 (6th Cir. 2007)).
“For purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly entitled to judgment.” Jackson v. Prof’l
Radiology Inc., 864 F.3d 463, 466 (6th Cir. 2017) (quoting S. Ohio Bank v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). “But we ‘need not accept as
true legal conclusions or unwarranted factual inferences.”’ Id. (quoting Mixon v. Ohio, 193 F.3d
389, 400 (6th Cir. 1999)). “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.”’ Id. (quoting
Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)).
4Although this Court typically only has jurisdiction over “final decisions of the district courts,” 28 U.S.C.
§ 1291, “[u]nder the collateral-order doctrine a limited set of district-court orders are reviewable ‘though short of
final judgment,”’ Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (quoting Behrens v. Pelletier, 516 U.S. 299, 305
(1996)). And it “is well established” that a “district court’s order rejecting qualified immunity . . . is a ‘final
decision’ within the meaning of § 1291.” Id. at 672.
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 7
In order to overcome a defendant’s qualified immunity defense, “a plaintiff must
plausibly allege facts showing ‘(1) that the official violated a statutory or constitutional right, and
(2) that the right was “clearly established” at the time of the challenged conduct.”’ Marvaso v.
Sanchez, 971 F.3d 599, 605 (6th Cir. 2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011)). “A Government official’s conduct violates clearly established law when, at the time of
the challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Ashcroft, 563 U.S. at 741(cleaned up). “To be clearly established, a legal principle must have a sufficiently clear
foundation in then-existing precedent.” District of Columbia v. Wesby, 138 S. Ct. 577, 589
(2018). There does not need to be “a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741 (citing
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
“The ‘clearly established’ standard also requires that the legal principle clearly prohibit
the officer’s conduct in the particular circumstances before him.” Wesby, 138 S. Ct. at 590. The
Supreme Court has “repeatedly stressed that courts must not ‘define clearly established law at a
high level of generality, since doing so avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she faced.’” Id. (quoting Plumhoff v.
Rickard, 572 U.S. 765, 779 (2014)). “A rule is too general if the unlawfulness of the officer’s
conduct ‘does not follow immediately from the conclusion that [the rule] was firmly
established.”’ Id. (quoting Anderson, 483 U.S. at 641). But “there can be the rare ‘obvious
case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though existing
precedent does not address similar circumstances.” Id. at 590 (quoting Brosseau v. Haugen,
543 U.S. 194, 199 (2004)); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002); Hart v. Hillsdale
County, 973 F.3d 627, 641 (6th Cir. 2020). Thus, when “no reasonable correctional officer could
have concluded” that the challenged action was constitutional, the Supreme Court has held that
there does not need to be a case directly on point. Taylor v. Riojas, 141 S. Ct. 52, 53 (2020); see
also Joanna C. Schwartz, Qualified Immunity and Federalism All the Way Down, 109 Geo. L.J.
305, 351 (2020) (“The Court’s decision in Taylor sends the signal to lower courts that they can
deny qualified immunity without a prior case on point.”); Lawrence Rosenthal, Defending
Qualified Immunity, 72 S.C. L. Rev. 547, 593 & n.193 (2020) (“More recently, however, the
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 8
Court has stressed that on egregious facts, qualified immunity should be denied regardless
whether there are factually similar precedents.”).
Although a defendant’s “entitlement to qualified immunity is a threshold question to be
resolved at the earliest possible point, that point is usually summary judgment and not dismissal
under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015) (cleaned up). “The
reasoning for our general preference is straightforward: ‘Absent any factual development
beyond the allegations in a complaint, a court cannot fairly tell whether a case is “obvious” or
“squarely governed” by precedent, which prevents us from determining whether the facts of this
case parallel a prior decision or not’ for purposes of determining whether a right is clearly
established.” Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019) (quoting Evans-Marshall v. Bd.
of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J.,
concurring)). Therefore, “it is generally inappropriate for a . . . court to grant a [12(c) motion for
judgment on the pleadings] on the basis of qualified immunity.” Wesley, 779 F.3d at 433.
I. Corrections Defendants
At the outset, it is necessary to clarify the constitutional claim at issue. In the Corrections
Defendants’ motion for partial judgment on the pleadings, they interpreted the Amended
Complaint to “allege violations of [Johnson’s] Eighth and Fourteenth Amendment rights under
the following theories: (1) supervisory liability; (2) deliberate indifference to serious medical
need; . . . (3) excessive use of force,” and (4) Monell liability. (R. 76-1 at PageID# 581.) The
Corrections Defendants sought judgment only on “Plaintiff’s excessive force, Eighth
Amendment, and Monell claims against the Corrections Defendants in their individual
capacities,” (Id. at PageID# 582), and the district court granted the Corrections Defendants’
motion except as to the Fourteenth Amendment excessive force claims, see Moderwell, 2020 WL
4726458, at *4.
On appeal, Plaintiff relies heavily on Bell v. Wolfish, 441 U.S. 520 (1979), and J.H. v.
Williamson County, 951 F.3d 709 (6th Cir. 2020), to support her excessive force claims against
the Corrections Defendants. But, as the Corrections Defendants argue, those cases concern
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 9
conditions of confinement claims—not excessive force claims.5 See Bell, 441 U.S. at 535; J.H.,
951 F.3d at 715–717. Although the Corrections Defendants preserved their challenge to
Plaintiff’s excessive force claims in the proceedings below, as they recognize, they did not
preserve a challenge to any conditions of confinement claims that Plaintiff may have brought.
See United States v. Huntington Nat’l Bank, 574 F.3d 329, 331–32 (6th Cir. 2009). Therefore,
we only analyze whether the Corrections Defendants are entitled to judgment on the pleadings on
the excessive force claims and do not address Plaintiff’s arguments based on Bell and J.H.
“To prevail on an excessive force claim, a pretrial detainee must show ‘that the force
purposely or knowingly used against him was objectively unreasonable.”’ Cretacci v. Call,
988 F.3d 860, 869 (6th Cir. 2021) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)).
Whether force used against a pretrial detainee is objectively unreasonable “turns on the ‘facts
and circumstances of each particular case”’ as viewed “from the perspective of a reasonable
officer on the scene, including what the officer knew at the time.” Kingsley, 576 U.S. at 397
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Although the factual record is currently wholly undeveloped, the Corrections Defendants
nonetheless argue that they are “entitled to qualified immunity because they did not violate a
clearly established constitutional right under the Fourteenth Amendment.” (Appellant Br. at 12.)
According to the Corrections Defendants, there is no need to develop the factual record in this
case because the Amended Complaint did not allege an assault against Johnson, and, as a matter
of law, claims of excessive force require that the pretrial detainee be assaulted.
However, this Court has held that ‘“claims of excessive force do not necessarily require
allegations of assault,’ but rather can consist of the physical structure and conditions of the place
of detention.” Burchett v. Kiefer, 310 F.3d 937, 946 (6th Cir. 2002) (quoting Cornwell v.
5The Corrections Defendants further assert that the Amended Complaint fails to state a conditions of
confinement claim. However, in the first cause of action, which, in part, alleges a failure to “Take Corrective
Measures Causing Constitutional Violations of the Eighth and Fourteenth Amendments,” the Amended Complaint
charges the defendants with the “[f]ailure and/or refusal to provide adequate monitoring and housing for detainees
who present risk of serious physical and/or mental harm and death,” and with “[f]ailing and/or refusing to provide
adequate housing and properly classify detainees so that they will have timely and adequate access to and delivery
of necessary and indicated medical and mental health assessment, evaluation, care, intervention, referral, and
treatment.” (R. 55 at PageID## 304–06.)
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 10
Dahlberg, 963 F.2d 912, 915 (6th Cir. 1992)); see also Ingram v. City of Columbus, 185 F.3d
579, 597 (6th Cir. 1999). For example, in Cornwell, a large group of inmates “intended to
protest [a] new prison policy by staging a sit-in on the bleachers” of an outdoor recreation area.
963 F.2d at 914. In response, those inmates “were rounded up” and “forced to lie face-down
with their eyes closed in a cold, muddy area.” Id. On a subsequent Fourth Amendment claim,
this Court explained that “claims of excessive force do not necessarily require allegations of
assault.” Id. at 915 (citing Martin v. Bd. of Cnty. Comm’rs, 909 F.2d 402, 406 (10th Cir. 1990)).
Therefore, Plaintiff’s claims of excessive force based on the Corrections Defendants subjecting
Johnson to the horrible conditions of CCCC’s Red Zone, despite his suicidal condition and in
response to a non-violent minor infraction, are not categorically barred by the Amended
Complaint’s failure to allege that the Corrections Defendants assaulted Johnson.
Because it was unnecessary for Plaintiff to allege an assault in conjunction with her
excessive force claim, there is no reason to depart from “our general preference” not to grant
qualified immunity based only on the pleadings. Guertin, 912 F.3d at 917. To understand “the
‘facts and circumstances of [this] particular case,”’ and to decide whether, faced with those facts
and circumstances, a reasonable official would have understood that placing Johnson in CCCC’s
Red Zone constituted objectively unreasonable force, Plaintiff must be provided the opportunity
to develop the factual record. Kingsley, 576 U.S. at 397 (quoting Graham, 490 U.S. at 396).
Although there is limited precedent addressing claims of excessive force without an assault, at
this stage, we cannot determine whether discovery will nonetheless establish that the Corrections
Defendants’ actions were so “egregious” that “any reasonable officer should have realized that”
the force used against Johnson “offended the Constitution.” Taylor, 141 S. Ct. at 54. For
example, in Linden v. Washtenaw County, 167 F. App’x 410 (6th Cir. 2006), a correctional
officer admitted during a deposition to having been warned about the risks of placing a suicidal
detainee in solitary confinement. See id. at 425–26. Other potentially relevant information that
can be unearthed during discovery that might show that “any reasonable officer should have
realized that” the force used against Johnson “offended the Constitution,” Taylor, 141 S. Ct. at
54, includes whether the Corrections Defendants knew about other suicides in the Red Zone,
were aware of the allegedly abhorrent “physical structure and conditions” of the Red Zone,
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 11
Burchett, 310 F.3d at 946, or had some other basis to know the risk that the Red Zone posed to
Johnson.
This Court’s usual practice of waiting until summary judgment to resolve qualified
immunity issues has particular import in this case for another reason. In addition to shielding
government officials from liability for civil damages, qualified immunity is also “a limited
‘entitlement not to stand trial or face the other burdens of litigation.”’ Iqbal, 556 U.S. at 672(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The desire to shield government
officials from “broad discovery,” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015), is the
basis for such a defendant’s entitlement to have qualified immunity “resolved at the earliest
possible point,” Wesley, 779 F.3d at 433 (quoting Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir.
2003)). But this “concern [is] irrelevant here.” Id. at 434. Because Plaintiff’s deliberate
indifference claims against the Corrections Defendants rely on the same factual predicate as the
excessive force claims, denying qualified immunity at this stage will not impose any additional
discovery burdens. Accordingly, we affirm the district court’s decision to allow Plaintiff’s
excessive force claims against the Corrections Defendants to proceed to discovery.
II. Executive Defendants
The “deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (cleaned up). And “[t]he Eighth Amendment protection
against deliberate indifference extends to pretrial detainees in state prisons by operation of the
Due Process Clause of the Fourteenth Amendment.” Rouster v. County of Saginaw, 749 F.3d
437, 446 (6th Cir. 2014); see also Winkler v. Madison County, 893 F.3d 877, 890 (6th Cir. 2018).
The Executive Defendants make several arguments in favor of granting judgment on the
pleadings as to Plaintiff’s deliberate indifference claims against them, but all would require us to
ignore the posture of this appeal.6
6Because none of the Executive Defendants’ arguments implicate the deliberate indifference standard, we
need not decide whether, pursuant to Kingsley v. Hendrickson, 576 U.S. 389 (2015), the test for deliberate
indifference claims brought under the Fourteenth Amendment retains a subjective component. See Griffith v.
Franklin County, 975 F.3d 554, 570 (6th Cir. 2020) (declining to address this issue because the claim failed whether
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 12
First, the Executive Defendants argue that the Amended Complaint insufficiently stated
allegations against them because, in most of the relevant allegations, the Amended Complaint
lists Budish, Pinkney, Taylor, and Carney (and various others) together without providing
distinct allegations for each defendant. However, the Amended Complaint alleges that, acting in
concert, the four high-level executives with “final policymaking authority over policies,
practices, and customs of the CCCC” violated Johnson’s constitutional rights. (R. 55 at
PageID## 279, 280, 282.) At summary judgment, Plaintiff will have to muster “facts that
demonstrate what each defendant did to violate the asserted constitutional right.” Lanman v.
Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v. Northville Reg’l Psychiatric
Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). But, at the pleading stage, Plaintiff’s allegations are
enough. See Hart, 973 F.3d at 640 (describing the difficulty of assigning individual liability at
the pleading stage).
The Executive Defendants also argue that the district court erroneously held that they
could be liable for deliberate indifference because they “could have perceived a risk to any
detainee.” (Appellant Br. at 21.) According to the Executive Defendants, Plaintiff “must also
plead facts showing that the Executive Defendants perceived a risk of harm to Mr. Johnson”
specifically. (Id.) However, the Supreme Court has made “it clear that the correct inquiry is
whether [the defendant] had knowledge about the substantial risk of serious harm to a particular
class of persons, not whether he knew who the particular victim turned out to be.” Taylor v.
Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995) (citing Farmer v. Brennan, 511 U.S.
825, 843 (1994)).
Next, the Executive Defendants rely on the principle that “a supervisor cannot be held
liable simply because he or she was charged with overseeing a subordinate who violated the
constitutional rights of another.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir.
2016). To overcome this obstacle, Plaintiff argues that the Executive Defendants: 1) personally
or not there was a subjective component); see also id. at 588–89 (Clay, J., concurring in part and dissenting part)
(concluding “that Kingsley is applicable to the deliberate indifference context” and, accordingly, “that a pretrial
detainee must only prove that a defendant-official acted intentionally to ignore their serious medical need or
recklessly failed to act with reasonable care to mitigate the risk that the serious medical need posed to the pretrial
detainee, even though a reasonable official in the defendant’s position would have known, or should have known,
that the serious medical need posed an excessive risk to the pretrial detainee’s health or safety.”).
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 13
devised and implemented the regionalization plan—an unconstitutional policy that created an
unreasonable risk of suicide, see Taylor, 69 F.3d at 81 (stating that a supervisor can be held
liable for the “implement[ation of] an unconstitutional policy” (citation omitted)); 2) knowingly
acquiesced in unconstitutional policies, including the use of solitary confinement as a
punishment for minor infractions, the conditions of the Red Zone, and the denial of food as a
punishment, see Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (“[S]upervisor liability
under § 1983 is appropriate when the supervisor . . . knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” (internal quotations and citations
omitted)); and 3) abandoned their duties by failing to enact policies to prevent suicide, to provide
adequate healthcare, to ensure appropriate supervision, and to train CCCC’s correctional officers,
see Winkler, 893 F.3d at 898 (holding that “a supervisor may be liable under § 1983 if he
abandons the specific duties of his position in the face of actual knowledge of a breakdown in the
proper workings of the department.” (cleaned up)).
As to whether they knowingly acquiesced in the unconstitutional conduct of a
subordinate, the Executive Defendants argue that Warden Ivey acted unconstitutionally without
their knowledge. However, the Executive Defendants’ involvement in, and knowledge of, Ivey’s
unconstitutional conduct requires “facts to be fleshed out during discovery.” Guertin, 912 F.3d
at 927. Drawing all inferences in Plaintiff’s favor, the Amended Complaint alleges that, in
response to the severe overcrowding knowingly caused by the Executive Defendants, Ivey
implemented unconstitutional policies. The Amended Complaint further alleges that the
Executive Defendants were on notice of the “insufficient and inedible food” and the “life-or-
death” conditions at CCCC. (R. 55 at PageID## 293, 295–296.) They also allegedly “knew of a
custom, propensity, and pattern” of prison officials “failing and/or refusing to provide prompt
and competent access to and delivery of medical and mental health assessment, evaluation, care,
intervention, referral, and treatment, to detainees.” (Id. at PageID## 304–05.) At summary
judgment, Plaintiff’s burden will be to present facts showing that the Executive Defendants knew
about the unconstitutional conduct and “did more than play a passive role in the alleged
violations or show mere tacit approval of the goings on.” Gregory v. City of Louisville, 444 F.3d
725, 751 (6th Cir. 2006); Peatross, 818 F.3d at 243. But this burden is not on Plaintiff at the
pleading stage. See Hart, 973 F.3d at 638 n.4 (explaining that “[a] complaint need not set down
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 14
in detail all the particularities of a plaintiff’s claim against the defendant.” (quoting Dunn v.
Tennessee, 697 F.2d 121, 125 (6th Cir. 1982))).
Similarly, the Executive Defendants challenge Plaintiff’s assertion that they “abandoned
the specific duties of their positions in the face of actual knowledge of a breakdown in the proper
workings of the [CCCC],” Winkler, 893 F.3d at 898 (cleaned up). However, the Amended
Complaint alleges that the Executive Defendants were “responsible for . . . the care and treatment
of Detainees/Inmates in custody” at CCCC. (R. 55 at PageID# 293.) Moreover, even before the
implementation of the regionalization plan, the Executive Defendants knew about the
overcrowding, insufficient medical care, staffing shortage, and numerous detainee deaths and
suicides at CCCC. Nonetheless, the Executive Defendants implemented a plan that they knew
would exacerbate those problems without mitigating the attendant risks. Unsurprisingly, the
overcrowding worsened. The already understaffed (and undertrained) CCCC correctional
officers and medical team became even more understaffed. And no policies were enacted to
lower suicide rates or to improve healthcare. In fact, the Executive Defendants allegedly had a
“custom, policy, or practice” of ignoring health risks to suicidal detainees. (Id. at PageID# 290.)
These allegations are enough to survive the pleading stage. See Winkler, 893 F.3d at 899
(explaining that summary judgment was appropriate in a case where the plaintiff contended that
the defendant “exhibited deliberate indifference by failing to promulgate additional or alternative
policies at the Detention Center” because she failed to show that the defendant “allowed the jail
to operate with the knowledge that existing healthcare policies were exposing inmates to a
substantial risk of serious harm”); Troutman v. Louisville Metro Dep’t of Corr., 979 F.3d 472,
488 (6th Cir. 2020) (affirming a denial of qualified immunity because the plaintiff did “not allege
that [the defendant] knew the policy was not working and nonetheless completely abdicated his
responsibilities”).
Finally, the Executive Defendants argue that, assuming the sufficiency of Plaintiff’s
allegations, they did not violate any clearly established law. However, “ample case law teaches
that deliberate indifference toward a detainee’s suicidal tendencies is a violation of
Constitutional rights.” Linden, 167 F. App’x at 425. “At the time of this incident, . . . [Johnson]
had a clearly established right not to be deprived of food.” Clark-Murphy v. Foreback, 439 F.3d
No. 20-3879 Moderwell v. Cuyahoga Cnty., Ohio, et al. Page 15
280, 292 (6th Cir. 2006) (citing Kent v. Johnson, 821 F.2d 1220, 1229 (6th Cir. 1987)
(Krupansky, J., concurring in part and dissenting in part)). He also had a clearly established right
to not be housed in an overcrowded facility. See Brown v. Plata, 563 U.S. 493, 501–02 (2011).
Whether this, or other, precedent clearly established a right that was violated by the Executive
Defendants requires factual development regarding the exact circumstances faced by the
Executive Defendants, what actions they took, what they knew when taking the alleged
unconstitutional actions, and with what intent they acted. See Guertin, 912 F.3d at 917.
Accordingly, we affirm the district court’s decision to deny judgment on the pleadings on
Plaintiff’s deliberate indifference claims against the Executive Defendants.
CONCLUSION
For the reasons stated above, the judgment of the district court is AFFIRMED.