IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALAN BREVALDO, 

Plaintiff,

v. Civil Action 2:18-cv-446

Judge James L. Graham

Magistrate Judge Jolson

MUSKINGUM COUNTY SHERIFF’S

OFFICE, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on Defendants’ Motion to Dismiss for Failure to State a 

Claim (Doc. 13) and Plaintiff’s Motion for Discovery (Doc. 15). For the reasons that follow, the 

undersigned RECOMMENDS that Defendants’ Motion to Dismiss be GRANTED and that 

Plaintiff be GRANTED thirty (30) days in which to file an amended complaint. Plaintiff’s Motion 

for Discovery is DENIED AS MOOT.

I. BACKGROUND

Plaintiff is an inmate at Ross Correctional Institution. (Doc. 8 at 3). Prior to his 

incarceration at Ross Correctional Institution, he was detained at the Muskingum County Jail (the 

“Jail”). (See generally Doc. 8-1). Plaintiff alleges that a number of correctional officers at the Jail 

physically assaulted him on at least five separate occasions. (Id. at 1–5). With one exception, the 

Jail’s staff allegedly denied Plaintiff medical treatment after each assault. (Id.). Plaintiff has 

submitted photos of his alleged injuries after one of these assaults. (See id. at 6–8). As a result of 

the alleged actions of the Jail’s staff, Plaintiff states that he was subject to excessive force, cruel 

and unusual punishment, torture, inadequate medical treatment, and emotional distress. (Id. at 9).
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On May 7, 2018, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 1). 

The Court granted Plaintiff’s Motion in an Order (Doc. 7) dated June 14, 2018, and the Complaint 

(Doc. 8) was docketed the same day. Plaintiff sued the Muskingum County Sheriff’s Office in its 

official capacity and Captain Dave Suciu in his individual capacity under 42 U.S.C. § 1983 for 

alleged violations of Plaintiff’s Eighth Amendment rights. (Id. at 3). 

Defendants filed their Motion to Dismiss for Failure to State a Claim on September 17, 

2018. Plaintiff filed a Response in Opposition (Doc. 14) on September 28, 2018, and Defendants 

filed a Reply (Doc. 16) on October 10, 2018. While the parties briefed the Motion to Dismiss, 

Plaintiff also filed a Motion for Discovery (Doc. 15), requesting that Defendants provide him with 

video recordings, medical records, grievances, a policies and procedures manual, and reports 

relating to excessive force and inmate mistreatment. The Motions are now ripe for resolution.

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a 

claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556 

U.S. 662, 663–64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing 

the complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual 

allegations as true. Id. at 57. “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added) (citing Twombly, 550 U.S. at 556).

On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555; see also 

Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff must give 

specific, well-pleaded facts, not just conclusory allegations). In other words, while “detailed 
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factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain statement” 

rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at 555) (citing Papasan v. 

Allain, 478 U.S. 265, 286 (1986)).

III. DISCUSSION

A. Muskingum County Sheriff’s Office

Defendants argue that the Muskingum County Sheriff’s Office (the “Sheriff’s Office”) 

should be dismissed from the lawsuit because it is not an entity capable of being sued. (Doc. 13 

at 2 (collecting cases)). Even if Plaintiff had properly sued Muskingum County, Defendants 

maintain that he has failed to state a plausible claim pursuant to Monell v. N.Y.C. Dep’t of Soc. 

Servs., 436 U.S. 658, 694 (1978). (Doc. 13 at 3–4). In their view, Plaintiff has failed to allege that 

a Muskingum County “custom, policy, or practice” was the cause of any violation of Plaintiff’s 

rights. (Id.).

In response, Plaintiff appears to concede that the Sheriff’s Office1 is not a proper defendant. 

(See Doc. 14 at 3 (“A sheriff’s office or sheriff’s department is a sub-unit of the county it serves. 

A sheriff’s office has no independent legal standing to sue or be sued and is not a proper defendant 

in a § 1983 case.”)) Further, he appears to concede that he “does not attribute [the] alleged 

unconstitutional acts to any policy or procedure of Muskingum County as we have not as yet filed 

for a motion of discovery and requested the policy and procedure manuals to submit for proof of 

violations.” (Id. at 1). 

 1

 Throughout his Response, Plaintiff uses the terms “Muskingum County,” “Muskingum County Sheriff’s 

Office,” and “Muskingum County Jail” interchangeably. (See generally Doc. 13). In his Complaint, Plaintiff clearly 

identified the Muskingum County Sheriff’s Office as a defendant. (See Doc. 8 at 3). 
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Nonetheless, Plaintiff argues that “Muskingum County has a history of abusing its 

powers.” (Id. at 5). According to him, the alleged actions of Defendants in this matter “resulted 

in a tacit, de facto approval and th[is] shows a custom of Correctional Officers behavior that 

resulted in multiple incidents that result in violations of [Plaintiff’s] civil rights.” (Id. at 3). 

Plaintiff argues that the Sheriff’s Office “has [a] history of ignoring or refusing to take action 

[which] may be used to reinforce the claim of a pattern or custom of practice against residents in 

this county who have a history of drug abuse or mental illness.” (Id. at 4).

“Municipalities are not vicariously liable in § 1983 actions merely because they employ 

someone who has committed a constitutional violation.” Arrington-Bey v. City of Bedford 

Heights, Ohio, 858 F.3d 988, 994 (6th Cir. 2017), cert. denied, 138 S. Ct. 738, 199 L. Ed. 2d 605 

(2018) (citing Monell, 436 U.S. at 694). “They must pay for violations only if the injury is caused 

by a municipal custom or policy, or if the city’s failure to train employees amounts to deliberate 

indifference to constitutional rights.” Arrington-Bey, 858 F.3d at 994 (citing City of Canton v. 

Harris, 489 U.S. 378, 388 (1989)). “A ‘policy’ is a deliberate choice to follow a course of action 

made from among various alternatives by the official or officials responsible for establishing final 

policy with respect to the subject matter in question.” Shorts v. Bartholomew, 255 F. App’x 46, 

57 (6th Cir. 2007) (collecting cases). Alternatively, a “custom” “must be so permanent and well 

settled” that it has the “force of law” and needs no formal approval. Doe v. Claiborne Cty., 103 

F.3d 495, 507–08 (6th Cir. 1996) (citation and internal quotation marks omitted).

Where, as here, a “municipality’s alleged responsibility for a constitutional violation stems 

from an employee’s unconstitutional act, [its] failure to prevent the harm must be shown to be 

deliberate under ‘rigorous requirements of culpability and causation.’” Arrington-Bey, 858 F.3d 

at 995 (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410–11 (1997)). 
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Ultimately, this requires a plaintiff to demonstrate a “direct causal link” between the custom or 

policy and the alleged constitutional violation. Claiborne Cty., 103 F.3d at 508 (citation omitted).

As an initial matter, Defendants are correct that the Sheriff’s Office is not a proper 

defendant in this action. See Ebbing v. Butler Cty., Ohio, No. 1:09-CV-00039, 2010 WL 596470, 

at *6 (S.D. Ohio Feb. 16, 2010) (collecting cases) (“Ohio and federal courts agree that a county 

sheriff’s department is not sui juris.”). However, “[p]ro se complaints,” like Plaintiff’s here, “are 

to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore 

be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). The Court therefore 

interprets Plaintiff’s claim against the Sheriff’s Office as a claim against Muskingum County. See

Luqman v. Hamilton Cty. Sheriff’s Dep’t, No. 1:17-CV-527, 2017 WL 4993426, at *2 (S.D. Ohio 

Sept. 5, 2017), report and recommendation adopted, No. 1:17-CV-527, 2017 WL 5028873 (S.D. 

Ohio Oct. 30, 2017) (“Plaintiff’s claims against the Hamilton County Sheriff’s Department are in 

reality official capacity claims against Hamilton County, the entity of which defendant Hamilton 

County Sheriff’s Department is an agent.”).

The question left to the Court is whether Plaintiff has alleged sufficient factual content to 

establish that he was injured as a result of a Muskingum County custom or practice. A review of 

the Complaint demonstrates that he has not. A plaintiff can establish the existence of an illegal 

policy or custom by reference to “(1) the municipality’s legislative enactments or official agency 

policies; (2) actions taken by officials with final decision-making authority; (3) a policy of 

inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights 

violations.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). Here, Plaintiff 

alleges that a number of correctional officers at the Muskingum County Jail physically assaulted 

him on at least five separate occasions during his detention there. (Doc. 8-1 at 1–5). But he does 
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not allege that any of these assaults were the result of a Muskingum County custom or policy. (See 

id.). Absent such allegations, Plaintiff’s claims against Muskingum County cannot proceed. See

Arrington-Bey, 858 F.3d at 994.

Plaintiff’s arguments to the contrary are unpersuasive. The Court first notes that Plaintiff 

concedes that his Complaint does not contain any allegations that the alleged constitutional 

violations were a result of a Muskingum County custom or policy. (See Doc. 14 at 2 (“Plaintiff 

generally alleges that he was assaulted by correctional staff on [multiple occasions] and then 

denied medical treatment. Relevant to this Motion, Plaintiff does not attribute these alleged 

unconstitutional acts to any policy or procedure of Muskingum County as we have not as yet filed 

a motion for discovery and requested the policy and procedure manuals to submit for proof of 

violations.” (internal citation omitted))). At this stage of proceedings, Plaintiff was required to 

plead “factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The 

fact that he has not had the opportunity to conduct discovery does not excuse his failure to comply 

with this requirement.

Nor can Plaintiff proceed with his claim against Muskingum County based on conclusory 

statements in his Response. The Court, in evaluating a motion to dismiss, is “limited to the 

complaint and the exhibits attached thereto.” Jones v. Bergman, No. 1:08–cv–599, 2009 WL 

3270003, at *2 (W.D. Mich. Oct. 8, 2009) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th 

Cir. 2001)). Plaintiff’s vague assertions in his Response regarding Muskingum County customs 

and policies are unsupported by any allegations in the Complaint. Therefore, Plaintiff’s claim 

against Muskingum County should be dismissed without prejudice.
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B. Captain David Suciu

Plaintiff’s claims against Defendant Captain David Suciu (“Suciu”) should be dismissed 

for similar reasons. As Defendants emphasize, “Plaintiff fails to allege any facts demonstrating 

that Captain Suciu was personally involved in any alleged constitutional violation. Indeed, Captain 

Suciu’s name does not appear anywhere in the Complaint’s recitation of facts.” (Doc. 13 at 5).

Plaintiff responds that, although his Complaint does not mention Defendant Suciu, “as a 

superior and head of the Muskingum County Jail, Captain Dave Suciu had knowledge of these 

attacks and did not intervene or prevent further assaults from occurring.” (Doc. 14 at 2–3. See 

also id. at 5–6 (“Plaintiff did fail to specifically name Captain Suciu in this initial filing. However, 

Captain Suciu was personally involved in constitutional violations as he did not provide sufficient 

safety for the inmate based on” a number of Ohio statutes)).

“To prevail on a cause of action under § 1983, a plaintiff must prove (1) the deprivation of 

a right secured by the Constitution or laws of the United States (2) caused by a person acting under 

the color of state law.” Winkler v. Madison Cty., 893 F.3d 877, 890 (6th Cir. 2018) (citation and 

internal quotation marks omitted). State actors may be sued in their official or individual capacity. 

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). The purpose of an individual capacity suit is 

“to impose personal liability upon a [state actor] for actions he takes under color of state law.” Id.

at 165. A plaintiff bringing an individual capacity suit “must plead that each [state actor] 

defendant, through the [person]’s own individual actions, has violated the Constitution.” Ashcroft 

v. Iqbal, 556 U.S. 662, 676 (2009). See also Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th 

Cir. 2012) (citations omitted) (“Persons sued in their individual capacities under § 1983 can be 

held liable based only on their own unconstitutional behavior.”). As a result, even if a plaintiff 

can prove a violation of his constitutional rights, his § 1983 claim must fail against a supervisory 
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official unless the supervisor “implicitly authorized, approved or knowingly acquiesced in the 

unconstitutional conduct of the offending subordinate.” Top Flight Entm’t, Ltd. v. Schuette, 729 

F.3d 623, 634–35 (6th Cir. 2013) (citation and internal quotation marks omitted). Thus, 

“[a]llegations of respondeat superior do not sustain a § 1983 claim against state employees in their 

individual capacities.” Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010). 

Plaintiff’s claims against Defendant Suciu do not satisfy this standard. As Plaintiff 

acknowledges, (Doc. 14 at 2, 5), the Complaint contains no allegations regarding Defendant Suciu, 

(see generally Doc. 8). Plaintiff does not allege that Defendant Suciu assaulted him. Nor does he 

allege that Defendant Suciu “implicitly authorized, approved or knowingly acquiesced in the 

unconstitutional conduct of the offending subordinate[s],” Top Flight Entm’t, 729 F.3d at 634–35 

(citation and internal quotation marks omitted). While Plaintiff has alleged that individual guards 

at the Jail engaged in potentially unconstitutional behavior, his Complaint does not contain 

allegations of any unconstitutional behavior on the part of Defendant Suciu. 

Instead, Plaintiff represents in his Response that Defendant Suciu had knowledge of the 

alleged assaults and did not intervene or prevent them, (Doc. 14 at 2–3), and that Defendant Suciu 

“sets a precedent as to the environment and culture of the work force with the jail and condones 

the correctional officers [sic] tactics and violation of inmates civil rights,” (id. at 5). But these 

conclusory statements in Plaintiff’s Response are unsupported by any allegations in the Complaint. 

(See generally Doc. 8). As previously noted, in evaluating Defendants’ Motion to Dismiss, the 

Court is limited to the allegations in Plaintiff’s Complaint and the exhibits attached thereto. 

Because the Complaint does not contain allegations that Defendant Suciu engaged in 

unconstitutional behavior, the claim against him in his individual capacity should be dismissed

without prejudice. See Iqbal, 556 U.S. at 676; Heyerman, 680 F.3d at 647.
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C. Leave to Amend

Although the undersigned concludes that Plaintiff’s allegations, as currently constituted, 

fail to state a claim upon which relief can be granted, the better course is to allow Plaintiff an 

opportunity to add plausible allegations. See Grullon v. City of New Haven, 720 F.3d 133, 139 

(2d Cir. 2013) (“A pro se complaint should not be dismissed without the Court’s granting leave to 

amend at least once when a liberal reading of the complaint gives any indication that a valid claim 

might be stated.” (citations, alterations, and internal quotation marks omitted)); Brewster v. Dretke, 

587 F.3d 764, 767–68 (5th Cir. 2009) (“Generally, . . . a pro se litigant should be offered an 

opportunity to amend his complaint before it is dismissed.” (citation omitted)); see also Runnion 

ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 519 (7th Cir. 

2015) (“[A] plaintiff whose original complaint has been dismissed under Rule 12(b)(6) should be 

given at least one opportunity to try to amend her complaint before the entire action is dismissed.”). 

As such, it is RECOMMENDED that Plaintiff be GRANTED thirty (30) days from the date of 

an Order adopting this recommendation in which to file an amended complaint.

D. Motion for Discovery (Doc. 15)

Given the current posture of this case, Plaintiff’s Motion for Discovery is DENIED AS 

MOOT.

IV. CONCLUSION

For the foregoing reasons, the undersigned RECOMMENDS that Defendants’ Motion to 

Dismiss (Doc. 13) be GRANTED and that Plaintiff be GRANTED thirty (30) days from the date 

of an Order adopting this recommendation in which to file an amended complaint. Additionally, 

Plaintiff’s Motion for Discovery (Doc. 15) is DENIED AS MOOT.
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Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may recommit 

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to 

the Report and Recommendation will result in a waiver of the right to have the district judge review 

the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the

decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 

U.S. 140, 152–53 (1985).

 IT IS SO ORDERED.

Date: November 6, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE