IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MEGAN WINSTON, et al., : Case No. 2:10-CV-1005 

 : 

Plaintiffs, : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

FRANKLIN COUNTY, et al., : 

 : Magistrate Judge Norah McCann King 

 : 

Defendants. : 

OPINION AND ORDER 

I. INTRODUCTION 

This matter is before the Court on the Motion for Summary Judgment of Defendants 

Herb Henderson, Lisa Marsh, Judge Dana Preisse, Karen Casey, Kevin O’Neil, Jodi Kidder, 

Gregory Lowe, Anthony LaBauve, and Mitchell Milner (collectively the “County Defendants”), 

(Doc. 95), and Motion for Summary Judgment of Defendant Brodotta Montgomery 

(“Montgomery”), (Doc. 98). For the reasons set forth herein, the County Defendants’ Motion is 

GRANTED in part and DENIED in part, and Defendant Montgomery’s Motion is DENIED.

II. BACKGROUND 

A. Factual Background 

Plaintiffs Megan Winston and Derrek Winston (collectively “Plaintiffs”) bring this action 

for compensatory and punitive damages for physical and emotional injuries allegedly sustained 

by Derrek Winston (“Winston”) while detained at the Franklin County Juvenile Detention Center 

(the “JDC”) in November 2008. Winston, then fourteen years of age, was in JDC custody from 

June 8, 2008 until December 12, 2008, in connection with aggravated robbery charges that were 

subsequently dismissed. Winston Depo., Doc. 92, 9:16-24. 

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JDC employs an incentive-based system referred to as the “Level System,” which allows 

youth in JDC custody to obtain privileges for good behavior and obeying JDC rules. The levels 

range from zero at orientation to a maximum of four. The Level System is implemented by JDC 

staff, including Juvenile Detention Officers (“JDOs”). While youth are typically placed in their 

rooms for bed at 8:30 p.m., level 3 and 4 youth have a bedtime of 9:30 p.m. Thus, after JDOs 

distribute snacks at 8:30 p.m., these level 3 and 4 youth are allowed back out of their rooms and 

given one hour of free time. The parties dispute whether level 1 and 2 youth are permitted out of 

their rooms after 8:30 p.m. without the permission of a unit supervisor. Winston was at level 4 

on the Level System at all times relevant to this action. JDC Standard Operating Procedures, 

Doc. 107, Ex. D; Youth Level System Memorandum, Doc. 107, Ex. E; Marshall Depo., Doc. 93, 

23:24-24:12. 

While at the JDC, Winston was housed in Unit 1, Pod B with Defendant Ricqus Marshall 

(“Marshall”). Winston Depo., Doc. 92, 10:16-24. Marshall, then fifteen years old, entered into 

JDC custody on October 28, 2008 in connection with a drug possession charge. O’Neil Depo., 

Doc. 90, 21:18-19; Marshall Admission Sheet, Doc. 110, Ex. 1. On October 29, 2008, the 

Juvenile Court Magistrate issued an order granting “temporary custody” of Marshall to Franklin 

County Children Services (“FCCS”) and ordered that he be held in detention at JDC pending 

further hearing. Magistrate’s Order, Doc. 98, Ex. B. Defendant Brodotta Montgomery 

(“Montgomery”) is Marshall’s biological mother and was his legal guardian at all times relevant 

to this action. Montgomery Aff., Doc. 98 Ex. A. 

On November 2, 2008, Marshall was involved in a fight with another youth, Kenneth 

Mitchell (“Mitchell”). The incident report indicates that the two were “talking trash to each 

other” when “Marshall hit Mitchell in the face and both youth started to fight.” Incident Report, 

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Doc. 110, Ex. B. Defendant Anthony LaBauve, a JDO on duty that night, fell to the ground in 

attempting to intervene in the fight. Id. Marshall was charged with and found guilty of a Rule 

2(b) offense for fighting, which is considered a major rule violation. Marshall was ordered to 

attend anger management classes and serve three days of solitary confinement beginning on 

November 12, 2008. Id.; Henderson Depo., Doc. 87, 51:2-11, 53:3-12, 57:5-9. The parties 

dispute what LaBauve knew about how the fight began, or the charges brought against Marshall 

in its wake. 

On the evening of November 10, 2008, before Marshall was placed in solitary 

confinement, JDO LaBauve allowed Marshall and Winston out of their respective rooms to clean 

the Unit 1, Pod B common area at approximately 8:30 p.m. Winston was entitled to be out of his 

room past 8:30 p.m. per his level privileges. Marshall was a level 1 on the Level System, and the 

parties dispute whether JDC policies permitted LaBauve to allow Marshall out of his room at this 

time without permission from a supervisor. The evidence adduced indicates that there was no 

previous hostility between Marshall and Winston. 

A few days prior, Marshall and Winston had arranged a trade wherein Winston would 

draw a picture in exchange for Marshall’s bedtime snack. LaBauve acknowledges that the 

exchange of food is against JDC rules because of “safety considerations,” including avoiding 

situations in which youth bully or become indebted to one another. LaBauve Depo., Doc. 88, 

38:3-11. Plaintiffs have presented evidence which suggests LaBauve was aware that Winston 

often received snacks in exchange for drawings and, on a number of occasions, delivered the 

extra snacks to Winston himself. Winston Depo., Doc. 92, 12:2-14:12. Marshall testified at his 

deposition that, on the evening of November 10, as he was exiting his room to clean, Marshall 

asked LaBauve whether he had to give his snack to Winston in exchange for the picture he had 

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received. Marshall Depo., Doc. 93, 44:4-20. LaBauve apparently responded that he did not. 

Id.; see also Institutional Disciplinary Hearing Report, Doc. 110, Ex. F at 11. Winston was 

upset that that Marshall would not give up his snack and had told on him to LaBauve. Marshall 

Depo., Doc. 93, 44:4-20. The two immediately began “bickering.” LaBauve Depo., Doc. 88, 

26:23-27:20 (Q: So from 8:30 as soon as you let them out, they started bickering. Is that your 

testimony? A: Yes.). 

Plaintiffs contend that Winston and Marshall continued to interact – and apparently “talk 

trash” – over the course of 22 minutes, while cleaning the common room. Defendants dispute 

whether this trash-talking was continuous. During this time, LaBauve told Winston and 

Marshall once to be quiet, and appears to have been on the phone. Marshall Depo., Doc. 93, 

37:2-38:24; LaBauve Depo., Doc. 88, 26:23-27:20. What LaBauve overheard of Marshall and 

Winston “bickering” is disputed, as is whether LaBauve ordered either youth to go to his room at 

any point during their disagreement. Compare LaBauve Depo., Doc. 88, 27:5-7, with Marshall 

Depo., Doc. 93, at 63:20-24. LaBauve acknowledges that JDOs are trained “to look out for 

potential threatening behavior and if that was to arise to separate [the youth] and call for 

assistance.” LaBauve Depo., Doc. 88, at 13:17-22. 

Marshall testified at his deposition that Winston “copped a little attitude” and – at 8:51:17 

p.m., according to security footage of that night – approached Marshall with his pants “up,” a 

gesture the JDC youth consider threatening. Marshall Depo., Doc. 93, 37:2-40-23; Security 

Footage, Doc. 110, Ex. G. At 8:52:11 p.m. on November 10, 2008, Winston bumped Marshall 

as he was crossing the room. Security Footage, Doc. 110, Ex. G. Security footage shows that 

Marshall turned swiftly and punched Winston in the face. Winston immediately falls out of the 

frame. It is unclear whether Winston hit his head on the floor or a near-by table. The cameras 

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pan to show Winston lying on the floor, apparently unconscious, his head surrounded by a 

growing pool of blood. Id. LaBauve issued a radio call to ask for assistance and sent Marshall 

to his room. Other JDOs and supervisors responded to the scene and rendered aid to Winston. 

Winston was taken to the hospital and remembers waking up sometime thereafter. 

Winston Depo., Doc. 92, 23:8-24:4. He was diagnosed with a traumatic brain injury, occipital 

lobe skull fracture, a laceration requiring four stitches, and now allegedly suffers from seizures, 

memory loss, depression, impulsive behavior control, mood disorders and migraines. Id. at 

34:21-35:13, 40:12-16; Walters Email, Doc. 110, Ex. F at 49. Marshall asserted that he did not 

intend to cause Winston any serious harm, but pled guilty to assault in violation of JDC Rule 10, 

for which he served three days in solitary confinement. Institutional Disciplinary Hearing 

Report, Doc. 110, Ex. F at 11. Marshall was also criminally charged with second degree 

felonious assault, resulting in a nine-month detention in an Ohio Department of Youth Services 

facility. Marsh Depo., Doc. 89, 66:18-22; Marshall Depo., Doc. 93, 12:16-20; 16:10-18. 

B. Procedural Background 

Plaintiffs Derrek Winston and his mother, Megan Winston, filed suit on November 9, 

2010, alleging that, as a result of the November 10, 2008 incident, Derrek Winston suffered 

injury to his brain, head and neck, medical expenses, lost wages, significant behavior changes, 

cognitive dysfunctions, memory loss and seizures. (Doc. 2.) Plaintiffs’ initial complaint 

identified the following Defendants: (1) The County of Franklin, Ohio (“Franklin County”); (2) 

the Franklin County, Ohio Board of Commissioners (the “Board”); (3) Herb Henderson 

(“Henderson”), Superintendent for Franklin County Juvenile Detention Center (in his individual 

and official capacities); (4) Marshall; (5) Montgomery, the parent and legal guardian of 

Marshall; (6) “John Does No. 1 through 10,” Juvenile Detention Officers (“JDOs”) of the 

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Franklin County Juvenile Detention Center (in their individual and official capacities). Plaintiffs 

asserted state law claims against Marshall for assault, battery, and intentional infliction of 

emotional distress and against Montgomery for parental liability pursuant to O.R.C. § 3109.10. 

With respect to Franklin County, the Board, Henderson and the JDOs, Plaintiffs alleged that 

these Defendants were deliberately indifferent, in violation of Winston’s civil rights pursuant to 

42 U.S.C. §§ 1983 and 1988 and the Fourteenth Amendment, because they disregarded a known 

and excessive risk to Winston’s health and safety. Plaintiffs also brought claims against these 

County-related Defendants for state law negligence and Megan Winston’s loss of consortium. 

 On June 30, 2011, this Court granted a Fed. R. Civ. P. 12(b)(6) motion to dismiss by 

Defendants Franklin County and the Board for failure to state a claim. (Doc. 21.) In dismissing 

claims against the Board, this Court found that the Board “was under no duty to provide a safe 

detention space in the Franklin county Juvenile Detention Center because the Board lacks the 

statutory authority to create policies related to the safety and protection of detainees.” (Id. at 5.) 

Rather, the Court found that “employees of detention facilities are under the direct authority of 

the juvenile court, and must abide by the guidelines and requirements for juvenile detention 

centers mandated by the Ohio Department of Youth Services” pursuant to O.R.C. § 5139.281. 

(Id. at 6.) 

 On August 2, 2011, Plaintiffs filed their First Amended Complaint. (Doc. 25.) The 

amended complaint maintained the same state claims against Marshall and Montgomery, and 

asserted deliberate indifference, negligence and loss of consortium claims against the following 

Defendants: (1) Henderson (in his individual and official capacities); (2) Lisa Marsh (“Marsh”), 

Assistant Superintendent for Franklin County Juvenile Detention Center (in her individual and 

official capacities); (3) Judge Dana S. Preisse (“Preisse”), Administrative Judge, Franklin County 

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Common Pleas Domestic Relations and Juvenile Branch (in her official capacity); (4) Karen S. 

Casey (“Casey”), Court Director, Franklin County Court of Common Pleas Domestic Relations 

and Juvenile Branch (in her official capacity); (5) Kevin O’Neil (“O’Neil”), Shift Supervisor, 

Franklin County Juvenile Detention Center (in his individual and official capacities); (6) Jodi 

Kidder (“Kidder”), Shift Supervisor (in her individual and official capacities); (7) Gregory Lowe 

(“Lowe”), Shift Supervisor (in his individual and official capacities); (8) Anthony LaBauve 

(“LaBauve”), JDO (in his individual and official capacities); (9) Devon Payne (“Payne”), JDO 

(in his individual and official capacities); (10) Darryl Hawkins (“Hawkins”), JDO (in his 

individual and official capacities); (11) Joseph Murchison (“Murchison”), JDO (in his individual 

and official capacities); (12) Amy Kelly (“Kelly”), JDO (in her individual and official 

capacities); (13) Mitchell Milner (“Milner”), JDO (in his individual and official capacities); (14) 

John Does No. 1 through 4, JDOs/Shift Supervisors (in their individual and official capacities). 

On July 2, 2012, Defendants Henderson, Marsh, Preisse, Casey, O’Neil, Kidder, Lowe, 

LaBauve, and Milner (collectively the “County Defendants”) moved for summary judgment. 

(Doc. 95.) Plaintiffs subsequently agreed to dismiss all claims against Defendants Kelly, Payne, 

Hawkins, Murchison and Milner. (Doc. 103.) In the course of briefing their opposition to the 

County Defendants’ motion, Plaintiffs also voluntarily dismissed all claims against Defendants 

O’Neil, Kidder, and Lowe, as well as all claims against Defendants Henderson and Marsh in 

their individual capacities. (Doc. 114.) LaBauve is the sole remaining County Defendant sued in 

both his official and individual capacities. Henderson, Marsh, Preisse, Casey remain as 

Defendants in their official capacities only. 

The remaining County Defendants seek summary judgment on Plaintiffs’ federal claims 

against them, variously asserting: Eleventh Amendment immunity, qualified immunity, and the 

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absence of an established policy or practice giving rise to the alleged constitutional deprivations. 

(Doc. 95.) They seek summary judgment on Plaintiffs’ state law claims on the basis of state 

statutory immunity pursuant to O.R.C. § 2744.02(A)(1). (Id.) 

On July 5, 2012, Defendant Montgomery moved for summary judgment on the O.R.C. § 

3109.10 parental liability claim against her. (Doc. 98.) Montgomery argues both that Marshall’s 

action was not “willful and malicious” (as is required to trigger parental liability), and that she 

was not a “parent” under the meaning of the statute at the time of the alleged assault. 

Both the County Defendants’ and Montgomery’s motions for summary judgment have 

been fully briefed, and were the subject of oral argument on January 30, 2013. These matters are 

now ripe for review. 

III. STANDARD OF REVIEW

 Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is 

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it 

“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United 

States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48 (1986)). 

In determining whether summary judgment is appropriate, the necessary inquiry is 

“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.’” Patton v. Bearden, 8 

F.3d 343, 346 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52). Summary judgment “will 

not lie if the dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a 

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reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. To 

survive such a motion, however, the nonmoving party must present “significant probative 

evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” 

Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). The suggestion of a mere 

possibility of a factual dispute is insufficient to defeat a movant's motion for summary judgment. 

See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen–

Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In assessing whether summary judgment is 

proper, the Court views evidence in the light most favorable to the nonmoving party. See United 

States v. Diebold, Inc., 369 U.S. 654, 655 (1962). 

IV. LAW AND ANALYSIS 

A. The County Defendants 

1. Eleventh Amendment Immunity 

Invoking Eleventh Amendment immunity, the remaining County Defendants move to 

dismiss the claims brought against them in their official capacities for want of jurisdiction. 

“[S]tate governments, and their arms, officers, and instrumentalities are generally immune from 

a private lawsuit in federal court by virtue of the Eleventh Amendment to the United States 

Constitution.” Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997). The “bar of the Eleventh 

Amendment to suit in Federal courts .... does not extend to counties and similar municipal 

corporations.” Alkire v. Irving, 330 F.3d 802, 811 (6th Cir. 2003) (quoting Mt. Healthy City Sch. 

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). Thus, the question here is whether the 

Franklin County Juvenile Detention Center – the governmental entity represented by the 

individual County Defendants – “should be considered an ‘arm of the state’ and thus vested with 

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sovereign immunity.” Id. (explaining that individuals “sued in their official capacity stand in the 

shoes of the entity they represent”). 

As this Court noted in its June 30, 2011 Order, Ohio statute places juvenile detention 

facilities “under the direct authority of the juvenile court.” (Doc. 21 at 6.) The Sixth Circuit 

decided in Mumford v. Basinski that Ohio courts of common pleas are arms of the state for the 

purposes of the Eleventh Amendment. 105 F.3d at 268. Accordingly, citing Mumford, the Sixth 

Circuit held in Oswald v. Lucas County Juvenile Detention Center that, as part of the juvenile 

court, “a county juvenile detention center ... is an arm of the state” also protected by sovereign 

immunity. 234 F.3d 1269, at *2 (Table) (6th Cir. 2000) (decided under O.R.C. § 2151.34, 

recodified as O.R.C. § 2152.41). 

Plaintiffs argue that Mumford, and by extension Oswald, are no longer good law. 

Mumford relied on the fact that Ohio courts of common pleas were creatures of state law, created 

by a statutory grant of jurisdiction, supervised by the Ohio Supreme Court, and subject to the 

judicial standards of the Ohio Constitution. In light of subsequent Supreme Court precedent, the 

Sixth Circuit has explained that “the reasoning in Mumford, if not the result, is now incorrect,” 

because it “nowhere addressed the issue of who would pay for a damage judgment against the 

court of common pleas.” Alkire, 330 F.3d at 811-12 (citing Regents of the Univ. of Cal. v. Doe, 

519 U.S. 425 (1997)).1

 

Significantly, however, “whatever reservations the Sixth Circuit may have with regard to 

applying the traditional factors to a determination of state sovereignty, ... it has not overruled 

Mumford or Oswald” as to their specific holdings regarding Ohio courts of common pleas and 

                                                             1 The Sixth Circuit in S.J. v. Hamilton County expressed a new four-factor test for determining whether an entity is 

an arm of the state: “(1) whether the state would be responsible for a judgment against the entity in question; (2) 

how state law defines the entity; (3) what degree of control the state maintains over the entity; and (4) the source of 

the entity’s funding.” 374 F.3d 416, 420 (6th Cir. 2004).

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juvenile detention facilities. Connor v. Catalano, No. 1:10-CV-1860, 2010 WL 4316752, at *2 

(N.D. Ohio Oct. 26, 2010) (citing Tripplett v. Connor, 109 Fed. Appx. 94, 96 n.4 (6th Cir. 2004) 

(“[W]e have expressed ... some doubt about the continued validity of Mumford’s reasoning 

[regarding Eleventh Amendment immunity for Ohio courts of common pleas]. We have not, 

however, decided that Mumford was incorrect... and we decline to overrule Mumford in the 

absence of [proper] briefing.”)). See also S.J. v. Hamilton Cnty., Ohio, 374 F.3d 416, 422-23 (6th 

Cir. 2004) (holding that a juvenile training facility is not an arm of the state, but explicitly 

distinguishing Oswald because the authorizing statute for training facilities – O.R.C. § 2151.65 – 

vests counties with discretion not present in O.R.C. § 2152.41, the authorizing statute for 

juvenile detention facilities). Thus, “[t]he current state of law, as set forth by the binding 

precedent of the Sixth Circuit opinions in Mumford, Triplett, and Oswald, unequivocally states 

that a juvenile detention facility is ‘part of the juvenile court, which is an arm of the state’” for 

the purposes of Eleventh Amendment immunity. Connor, 2010 WL 4316752, at *2 (quoting 

Oswald, 234 F.3d 1269, at *2). 

Because state instrumentalities are immune from civil damages suits in federal court, 

Defendants Henderson, Marsh, Preisse, Casey and LaBauve, in their official capacities, are 

likewise immune. As such, there is no need to consider the County Defendants’ other arguments 

for summary judgment on claims asserted against them in their official capacities. Plaintiffs’ 

claims against the County Defendants in their official capacities are DISMISSED for want of 

jurisdiction. 

2. Qualified Immunity 

Plaintiffs’ amended complaint asserts claims against Defendant LaBauve in his individual 

capacity for deliberate indifference to Winston’s health and wellbeing in violation of 42 U.S.C. 

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§§ 1983 and 1988 and the Fourth Amendment (Count I). Generally, in civil damages actions 

arising out of government officials' performance of discretionary functions, officials are entitled 

to qualified immunity from suit “insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person would have known.” Philips v. 

Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982)). 

To evaluate whether qualified immunity applies, the Sixth Circuit employs a two-step 

analysis that considers: “(1) whether, considering the allegation in a light most favorable to the 

party injured, a constitutional right has been violated, and (2) whether that right was clearly 

established.” Hill v. Kentucky, 457 F.3d 583, 587 (6th Cir. 2006) (quoting Estate of Carter v. 

City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005)). The order of this inquiry is not 

mandatory, nor does a court need to reach both steps of the analysis. Pearson v. Callahan, 555 

U.S. 223, 236 (2009). In addition, courts in this Circuit occasionally perform a third inquiry 

into “whether the plaintiff offered sufficient evidence to indicate what the official allegedly did 

was objectively unreasonable in light of the clearly established constitutional rights.” Hill, 457 

F.3d at 587 (alterations in original) (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 

901 (6th Cir. 2004)). In order to avoid duplicative analysis, this third step can be collapsed into 

the second if “the case at issue ‘is one of the many cases where, if the right is clearly established, 

the conduct at issue would also be objectively unreasonable.’” Id. (quoting Caudill v. Hollan, 

431 F.3d 900, 911 n.10 (6th Cir. 2005)). 

Significantly, when evaluating qualified immunity at the summary judgment stage, courts 

usually “adopt[] ... the plaintiff’s version of the facts,’ unless the plaintiff’s version is ‘blatantly 

contradicted by the record so that no reasonable jury could believe it....’” Stoudemire v. Mich. 

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Dep’t of Corrections, No. 11-1588, -- F.3d --, at *4 (6th Cir. Jan. 31, 2013) (internal citations 

omitted) (quoting Scott v. Harris, U.S. 372, 378 (2007)). 

a. Clearly Established Rights and Objective Unreasonableness 

 In deciding a motion for summary judgment, courts may determine whether or not a right 

was clearly established at the time of the alleged violation. Harlow, 457 U.S. at 818. Whether 

the right was “clearly established” is determined “in light of the specific context of the case, not 

as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Moreover, “[t]he 

contours of the right must be sufficiently clear that a reasonable official would understand that 

what he is doing violates that right.” Anderson v. Ceighton, 483 U.S. 635, 640 (1987). Notably, 

“[t]his does not mean that ‘an official action is protected by qualified immunity unless the very 

action in question has previously been held unlawful.’ Rather, it means that ‘in light of preexisting law the unlawfulness must be apparent.’” Stoudemire, -- F.3d --, at *8 (internal citations 

omitted) (quoting Anderson, 483 U.S. at 640). 

Here, Plaintiffs allege that LaBauve violated Winston’s Fourteenth Amendment due 

process rights as a detainee by acting with deliberate indifference to his health and wellbeing. 

The Supreme Court has held definitively that “prison officials have a duty ... to protect prisoners 

from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). 

Thus, the Sixth Circuit has held that when prison officials act with deliberate indifference to such 

prisoner violence, they violate pre-trial detainees’ clearly established rights under the Fourteenth 

Amendment. Leary v. Livingston Cnty., 528 F.3d 438, 442 (6th Cir. 2008). See also Doe v. 

Bowles, 254 F.3d 617, 620 (6th Cir. 2001) (“The right of an inmate to be protected from an 

attack by a fellow inmate was well established at the time the events in question took place.”). 

Therefore, where a plaintiff establishes that a deliberate indifference violation occurred, “[i]t 

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would have been ‘clear to a reasonable officer that [such] conduct was unlawful.’” Leary, 528 

F.3d at 442 (quoting Saucier, 533 U.S. at 202). 

b. Whether LaBauve Acted With Deliberate Indifference 

 The question on summary judgment, then, is whether there exists a dispute of material 

fact as to whether LaBauve acted with deliberate indifference in violation of Winston’s 

Fourteenth Amendment rights. While “deliberate indifference entails something more than mere 

negligence, ... it is [also] satisfied by something less than acts or omissions for the very purpose 

of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. Thus, “[t]o 

raise a cognizable deliberate-indifference claim, an inmate must show that the alleged 

mistreatment was ‘objectively’ serious and that the defendant ‘subjectively’ ignored the risk to 

the inmate’s safety.” Leary, 528 F.3d at 442 (citing Farmer, 511 U.S. at 829). 

i. Objective Component 

The objective component of the deliberate indifference test asks whether “the conditions 

facing [Winston] pose[d] an objectively ‘substantial risk of serious harm.’” Id. at 441 (quoting 

Farmer, 511 U.S. at 834). Here, there is no dispute as to whether Marshall punched Winston, and 

no dispute as to whether it was the cause of his injury. The parties do dispute whether the 

conditions in which Winston was held posed a substantial risk of serious injury. LaBauve cannot 

plausibly assert that there was no risk, given the evidence indicating that Winston was seriously 

harmed. He argues, however, that “there is no evidence before the court that indicates that 

hostilities between Derrek [Winston] and Ricqus [Marshall] were likely” because there was no 

history of such hostility. (Doc. 115 at 5.) Plaintiffs counter that Marshall’s history and the 

circumstances of Marshall and Winston’s 22-minute interaction on November 10, 2008 created 

an objectively serious risk. 

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Plaintiffs have produced evidence that, on November 2, 2008, just the week prior to the 

incident with Winston, Marshall punched another youth in the face, escalating trash-talking into 

a physical altercation. Incident Report, Doc. 110, Ex. B. LaBauve himself fell to the ground 

while attempting to intervene in the fight. Marshall was charged with a Rule 2(b) offence for 

fighting – a major rule violation – and ordered to attend anger management classes and serve 

three days of solitary confinement beginning on November 12, 2008. Henderson Depo., Doc. 

87, 51:2-11, 53:3-12, 57:5-9. 

On the evening of November 10, 2008, before Marshall was placed in solitary 

confinement, LaBauve allowed Marshall out of his room to clean without first notifying a 

supervisor. Plaintiffs have presented evidence that Marshall and Winston had arranged a trade, 

wherein Winston would draw a picture in exchange for Marshall’s snack, and the two began to 

talk trash when Marshall refused to give Winston the snack. Marshall Depo., Doc. 93, 44:4-20; 

LaBauve Depo, Doc 88, 26:23-27:20; 33:1-23. LaBauve acknowledges that the exchange of 

food is against JDC rules because it has the potential to expose youth to harm at the hands of 

other youth. LaBauve Depo., Doc. 88, 38:6-11. LaBauve also states that he was trained “to look 

out of potential threatening behavior and if that was to arise to separate [the youth] and call for 

assistance.” Id. at 13:17-22. Though LaBauve states that he did order Marshal and Winston to 

be quiet, and eventually, to go to their rooms, Plaintiffs present evidence to show that LaBauve 

took no action to separate the two. Marshall Depo., Doc. 93, at 63:20-24. Plaintiffs have also 

presented evidence that Winston and Marshall continued to interact and talk trash for a total of 

22 minutes, culminating in the alleged assault at 8:52 p.m. See LaBauve Depo, Doc 88, 26:23-

27:20. 

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The above facts, when taken together and viewed in the light most favorable to Plaintiffs, 

could lead a reasonable jury to conclude that LaBauve’s failure to intervene objectively created a 

substantial risk of serious harm. Cf. Leary, 528 F.3d at 442 (holding, even in the absence of prior 

specific threats against a detainee, that evidence of prison norms of violence against prisoners 

charged with child rape established “that inmates’ knowledge of such charges posed of an 

objectively serious risk of harm”). 

ii. Subjective Component 

The deliberate indifference standard’s subjective component “requires a plaintiff to 

demonstrate that ‘the official being sued perceived facts from which to infer substantial risk to 

the prisoner, that he did in fact draw the inference, and that he disregarded that risk.’” Parsons v. 

Caruso, 2012 WL 3186662, at *4 (6th Cir. Aug. 7, 2012) (quoting Comstock v. McCrary, 273 

F.3d 693, 703 (6th Cir. 2001)). Although “[i]t is not enough to show that an official ‘fail[ed] to 

alleviate a significant risk that he should have perceived but did not,’” id. (quoting Farmer, 511 

U.S. at 838), “[s]ubjective knowledge of a substantial risk can be ‘demonstrate[d] ... from 

circumstantial evidence.’” Id. at *5 (quoting Farmer, 511 U.S. at 842). Moreover, “[i]f the risk 

is obvious, so that a reasonable man would realize it, we might well infer that the defendant did 

in fact realize it.” Id. (quoting Farmer, 511 U.S. at 842). While “it remains open to the officials 

to prove that they were unaware even of an obvious risk to inmate health or safety,” this 

determination would fall to the trier of fact. Id. 

Defendant argues that, because there was no prior hostility between Marshall and 

Winston, and Winston himself previously though he and Marshall were “fine,” it would be 

“unreasonable to expect clairvoyance from JDO LaBauve.” (Doc. 95 at 11.) Defendant is 

correct that, alone, Marshall’s prior involvement in a fight with another youth would be 

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insufficient to put LaBauve on notice that Winston was at risk: “the mere fact that a prison 

official is aware of one assault is not enough to show that the official was actually aware of a risk 

of a second assault.” King v. Edward Banks, No. 2:10-cv-852, 2012 WL 2891264, at *4 (S.D. 

Ohio Jul. 13, 2012). That is not, however, the only information that was available to LaBauve at 

the time of the alleged assault. Plaintiffs have presented evidence – albeit some of it disputed – 

that LaBauve was also knew: (1) Marshall had a history of escalating trash-talk to violence by 

punching other youth in the face; (2) JDC rules against exchanging food were intended to protect 

youth from potential harm; (3) Marshall and Winston had arranged an illicit food trade; (4) 

Winston was angry that Marshall did not want to comply with the bargain; (5) Winston and 

Marshall were talking trash from the time they were released from their rooms at 8:30 p.m.; (6) 

Marshall and Winston ignored instructions to be quiet; and (7) JDOs are trained to separate 

youth exhibiting potentially threatening behavior. Thus, even if Defendant is correct that there 

was no reason to expect hostilities when Marshall and Winston were first placed on cleaning 

duty at 8:30 p.m., a reasonable jury could infer that LaBauve, as a reasonable man aware of these 

facts, would have realized the risk by the time trash-talk escalated to violence at 8:52 p.m. 

Given the genuine disputes of material fact as to whether there was an objective risk of 

substantial harm, as well as whether LaBauve was subjectively aware of that risk and 

disregarded it, summary judgment will not lie. Anderson, 477 U.S. at 248. Defendant 

LaBauve’s motion for summary judgment on Count I as asserted against him in his individual 

capacity is therefore DENIED. 

3. State Law Claims 

 Plaintiffs also assert state law claims against Defendant LaBauve in his individual 

capacity for negligence (Count II) and Megan Winston’s loss of consortium (Count VII). 

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Defendant moves for summary judgment on these claims on the basis of state law statutory 

immunity. Ohio Revised Code § 2744.03(A)(6) provides that that employees of a political 

subdivision are immune from civil liability for damages allegedly caused by acts or omissions in 

connection with a governmental or proprietary function, unless: 

(a) The employee's acts or omissions were manifestly outside the scope of the 

employee's employment or official responsibilities; 

(b) The employee's acts or omissions were with malicious purpose, in bad faith, or 

in a wanton or reckless manner; 

(c) Civil liability is expressly imposed upon the employee by a section of the 

Revised Code. Civil liability shall not be construed to exist under another section 

of the Revised Code merely because that section imposes a responsibility or 

mandatory duty upon an employee, because that section provides for a criminal 

penalty, because of a general authorization in that section that an employee may 

sue and be sued, or because the section uses the term “shall” in a provision 

pertaining to an employee. 

 Here, Plaintiffs argue that the second statutory exception – for acts or omissions “with 

malicious purpose, in bad faith, or in a wanton or reckless manner” – applies. In the context of 

the immunity statute, Ohio courts have defined “reckless conduct” as “an act done with 

knowledge or reasons to know of facts that would lead a reasonable person to believe that the 

conduct creates an unnecessary risk of physical harm that is greater than necessary to make the 

conduct negligent.” Culberson v. Doan, 125 F.Supp.2d 252, 284 (S.D. Ohio 2000) (quoting 

Caruso v. State, 737 N.E.2d 563, 567-568 (Ohio 2000)). The term “reckless” is often used 

interchangeably with the word “wanton.” Id. (quoting Caruso, 737 N.E.2d at 568). While no 

intent to cause injury is required for either term, they both “connote a mental state of greater 

culpability than simple carelessness or negligence.” Id. (quoting Caruso, 737 N.E.2d at 568). 

The parties’ respective arguments here are largely similar to those asserted for and 

against the application of qualified immunity. Defendants assert that there is no evidence to 

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suggest that LaBauve knew or had reason to know that Winston was at risk on November 10, 

2008. As explained above, however, when viewed in the light most favorable to Plaintiffs, the 

evidence concerning Marshall’s history, the circumstances in the 22 minutes leading up to the 

alleged assault, and LaBauve’s knowledge of those facts, could lead a reasonable jury to 

conclude that he acted with deliberate indifference. Given that deliberate difference imposes a 

higher standard than does recklessness, a reasonable jury could conclude on the same facts that 

LaBauve acted in “a wanton or reckless manner.” Thus, Plaintiffs have alleged sufficient facts to 

create a genuine issue of material fact as to whether the character of Defendant LaBauve’s acts 

or omissions fall within the scope of the § 2744.03(A)(6)(b) exception to employee immunity. 

Defendant LaBauve’s motion for summary judgment on the state law claims against him on the 

basis of statutory immunity is therefore DENIED. 

B. Defendant Montgomery 

 Plaintiffs assert a claim against Defendant Montgomery for parental liability pursuant to 

O.R.C. § 3109.10 (Count VI). The parental liability statute provides, in pertinent part: 

Any person is entitled to maintain an action to recover compensatory damages in 

a civil action, in an amount not to exceed ten thousand dollars and costs of suit in 

a court of competent jurisdiction, from the parent of a child under the age of 

eighteen if the child willfully and maliciously assaults the person by a means or 

force likely to produce great bodily harm. 

O.R.C. § 3109.10. 

Defendant Montgomery moves that this Court grant summary judgment against the 

Plaintiff on Count VI of the amended complaint. Montgomery first argues that she was not a 

“parent” within the meaning of the statute at the time relevant to this action. She also argues that 

Marshall’s alleged assault was not sufficient to trigger parental liability. The Court takes up each 

argument in turn. 

1. Whether Montgomery is a “Parent” Under § 3109.10 

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Montgomery does not dispute that she is Marshall’s biological mother, nor that he resided 

with her, and was in her care, custody and control until October 29, 2008. She asserts, however, 

that her legal status was changed by the October 29, 2008 Juvenile Court Order which granted 

“temporary custody” of Marshall to Franklin County Children Services (“FCCS”) and ordered 

that he be held in detention at JDC pending further hearing. Juvenile Court Magistrate’s Order, 

Doc. 98, Ex. 2. At the time of the November 10, 2008 incident, he was still in the custody of 

JDC. Because only FCCS and JDC could make decisions for and on behalf of Marshall during 

the period of his detention, Montgomery argues that she cannot be held responsible as a “parent” 

under O.R.C. § 3109.10. 

The term “parent” for the purposes of O.R.C. § 3109.10 is defined in O.R.C. § 

3109.09(A) to mean one of the following: 

(1) Both parents unless division (A)(2) or (3) of this section applies; 

(2) The parent designated the residential parent and legal custodian pursuant to an 

order issued under section 3109.04 of the Revised Code that is not a shared 

parenting order; 

(3) The custodial parent of a child born out of wedlock with respect to whom no 

custody order has been issued. 

Thus, by the plain language of the statute, the biological parent is only exempt from parental 

liability if that parent is not the legal custodian pursuant to a § 3109.04 order, or is the 

noncustodial parent of a child born out of wedlock to whom no custody order has been issued. In 

the absence of other enumerated exceptions for temporary losses of legal custody, the canon of 

expressio unius dictates against reading in an exception for a child temporarily in the custody of 

the juvenile court system. See Cogswell v. Brook, No. 2003-G-2511, 2004 WL 2376271 (Ohio 

Ct. App. Oct. 22, 2004) (holding that neither a county children services board nor a foster parent 

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appointed and certified by a county children’s services board can be held liable under O.R.C. § 

3109.10 for the willful acts of a child temporarily in their custody). 

Moreover, O.R.C. § 3109.10 imposes strict liability on parents for the willful acts of their 

minor children, regardless of whether the child was under the parent’s supervision or control at 

the time of the tortious conduct. Hunt v. Hicks, 98-CA-72, 1999 WL 254473, at *2 (Ohio Ct. 

App. Mar. 17, 1999) (holding a residential parent liable under § 3109.10 for crimes committed 

by her child while in the temporary custody and control of his non-residential parent, even where 

the residential parent was not negligent in supervising her son). Whatever reservations this Court 

may have about imposing liability on a parent temporarily stripped of custody by the juvenile 

court, it must defer to the policy judgment exercised by the Ohio legislature in enacting the 

parental liability statute. Accordingly, by its terms, Defendant Montgomery is a parent within 

the meaning of O.R.C. § 3109.10, and, therefore, potentially subject to liability for damages 

arising from Marshall’s willful acts. 

2. Whether Marshall’s Acts Trigger Parental Liability 

 Defendant Montgomery next argues that Marshall’s alleged assault on Winston was not 

sufficient to trigger parental liability because it was not “willful and malicious.” Specifically, 

Montgomery asserts that Marshall harbored no malice against Winston and was acting only in 

self-defense, out of fear for his safety. Montgomery also contends that a single punch would not 

ordinarily result in any serious harm, and therefore cannot be considered “a means or force likely 

to produce great bodily harm.” Plaintiffs counter that Marshall did not need to throw a second 

punch because his first sent Winston to the ground, unconscious. Montgomery also points to 

evidence that Winston’s injury was directly caused by his impact with the table – something she 

says Marshall could not have anticipated. Plaintiff disputes whether Winston’s head hit the table 

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or the floor. Regardless, Marshall’s punch did hit Winston with enough force to cause an impact 

that resulted, Plaintiffs allege, in severe blood loss, brain injury, seizures, and cognitive and 

behavioral changes. 

 The Ohio Supreme Court has defined “willful misconduct” as conduct involving “an 

intent, purpose or design to injure.” McKinney v. Hartz & Restle Realtors, Inc., 8510 N.E.2d 

386, 389 (Ohio 1987). Furthermore, in Ohio, “[m]alice in the legal sense signifies a willful 

design to do another injury, and this is regardless of the fact that such design was prompted by 

hatred or revenge, or by hope of gain.” Bush v. Kelley’s Inc., 247 N.E.2d 745, 747 (Ohio 1969). 

In the context of statutory parental liability, Ohio courts have permitted the necessary mental 

state to be inferred from the quality and character of the act itself. See Klein v. Compton, No. 

85AP-168, 185 WL 3884 at *1 (Ohio App. Nov. 19, 1985) (upholding a finding of parental 

liability where a minor child was part of a group who assaulted a plaintiff and there is evidence 

that the child directly punched and kicked the victim, without additional evidence that assault 

was malicious or intended to produce great bodily harm). 

Here, the question of whether Marshall intended to injure Winston or whether “willful 

and malicious” intent can be inferred from the character of Marshall’s alleged assault is one of 

material fact properly determined by a jury. Defendant is unable to point to any authority which 

states that a finding of self-defense negates the requisite scienter to trigger parental liability as a 

matter of law. Even so, whether Marshall’s response was reasonable given the provocation and 

he acted in self-defense would be disputed questions of material fact. Finally, it is for a jury to 

determine if a punch to the face with the force supplied by Marshall was likely to cause great 

bodily injury. Because a reasonable jury could conclude that a punching someone in the face 

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with the force in question was a willful or malicious act likely to cause great bodily harm, 

summary judgment will not lie. 

 Defendant Montgomery’s Motion for Summary Judgment on Count VI of Plaintiffs’ 

amended complaint is therefore DENIED. 

V. CONCLUSION 

 For the reasons stated above, the County Defendants’ Motion for Summary Judgment is 

GRANTED in part and DENIED in part. Plaintiffs’ claims against the County Defendants in 

their official capacities are hereby DISMISSED. Defendant Montgomery’s Motion for Summary 

Judgment is DENIED. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Court Judge 

DATED: February 25, 2013 

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