UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Kelsey Friend, et al.,

 Plaintiffs,

 vs.

Adams County Sheriff, et al.,

 

 Defendants.

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Case No.: 1:17-cv-00766

Judge Michael R. Barrett

ORDER 

This matter is before the Court on Defendant Adams County Sheriff’s Motion for 

Judgment on the Pleadings. (Doc. 39). Plaintiffs have filed a memorandum in opposition 

(Doc. 42), to which Defendant has replied (Doc. 44). For the reasons that follow, 

Defendant’s Motion will be GRANTED.

I. BACKGROUND

Plaintiffs are a father, Brandon Friend, and his now-adult daughter, Kelsey Friend.1

(Doc. 36 ¶¶ 3-4 at PageID 192). On December 29, 2014, Kelsey—then a minor—was 

staying with her mother at her mother’s home in Adams County, Ohio. (Id. ¶¶ 22, 24 at 

PageID 195). At that time, Kelsey’s mother was dating Defendant Jeff McCarty, who was 

working as an Adams County Deputy Sheriff. (Id. ¶¶ 8, 23 at PageID 193, 195). McCarty 

gave Ambien to Kelsey in order to put her to sleep and then sexually assaulted her. (Id.

¶ 25 at PageID 195). McCarty “obtained [the Ambien] pursuant to his employment[]” with 

 1 To distinguish between the Plaintiffs, they will be referred to by their first names. Kelsey turned 18 yearsold on July 26, 2017, some two-and-one-half years after the sexual assault that prompted this lawsuit. (Doc. 

36 ¶ 3 at PageID 192). 
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West Union Volunteer Life Squad. (Id.). Kelsey reported the assault to her basketball 

coach the next day. (Id. ¶ 28). A DNA test confirmed the presence of McCarty’s saliva 

and semen. (Id. ¶¶ 35-36 at PageID 196). McCarty pleaded guilty and received jail time 

for this crime. (Id. ¶ 38).

Count One of Plaintiffs’ Third Amended Complaint alleges a civil rights violation 

under 42 U.S.C. § 1983 against Defendants Adams County Sheriff and Jeffrey McCarty. 

(Id. at PageID 197). Count Two alleges a state law claim of negligent hiring, retention, 

and supervision against Defendants Adams County Sheriff and West Union. (Id. at 

PageID 197-98). Defendant West Union has since been dismissed from the proceedings, 

and Plaintiffs voluntarily dismiss Count Two against Defendant Adams County Sheriff. 

(Doc. 42 at PageID 246; Doc. 50 at PageID 315). Count Three alleges a state law claim 

of assault and battery against Defendant McCarty. (Doc. 36 at PageID 198). Count Four 

alleges a state law claim for negligent infliction of emotional distress against Defendant 

McCarty. (Id.). 

Pursuant to Fed. R. Civ. P. 12(c), Defendant Adams County Sheriff moves for 

judgment on the pleadings. (Doc. 39).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the 

pleadings “[a]fter the pleadings are closed—but early enough not to delay trial—[.]” The 

legal standard for adjudicating a Rule 12(c) motion is the same as that for adjudicating a 

Rule 12(b)(6) motion. Gascho v. Global Fitness Holdings, LLC, 918 F. Supp. 2d 708, 716 
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(S.D. Ohio 2013) (citing Lindsay v. Yates, 498 F.3d 434 n.5, 438 (6th Cir. 2007)2); see 

Warrior Sports. Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010).

Rule 12(b)(6) allows a party to move to dismiss a complaint for “failure to state a 

claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). To withstand a dismissal 

motion, a complaint must contain “more than labels and conclusions [or] a formulaic 

recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 555 (2007). The Court does not require “heightened fact pleading of specifics, but 

only enough facts to state a claim for relief that is plausible on its face.” Id. at 57 

(emphasis added). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A district court 

examining the sufficiency of a complaint must accept the well-pleaded allegations of the 

complaint as true. Id.; DiGeronimo Aggregates, LLC v. Zemla, 763 F.3d 506, 509 (6th Cir. 

2014).

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are 

presented to and not excluded by the court, the motion must be treated as one for 

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d) (emphasis added). In this 

circumstance, “[a]ll parties must be given a reasonable opportunity to present all the 

material that is pertinent to the motion.”

 2 In contrast to a Rule 12(c) motion, a Rule 12(b)(6) motion “must be made before pleading if a responsive 

pleading is allowed.” Fed. R. Civ. P. 12(b)(6) (emphasis added); Lindsay, 498 F.3d at 437 n.4.
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III. ANALYSIS

A government employer is liable for its employee’s acts under 42 U.S.C. § 1983 

when that employer has a policy or custom that causes a plaintiff’s injury. See Marcum v. 

Scioto Cty., Ohio, No. 1:10-cv-790, 2014 WL 3955874, at *31 (S.D. Ohio 2014). A policy 

or custom need not be express. See Monell v. Dept. of Soc. Servs. of City of New York, 

436 U.S. 658, 691 (1978) (“even though such a custom has not received formal approval 

through the body’s official decisionmaking channels.”); see also Adickes v. S.H. Kress & 

Co., 398 U.S. 144, 167-68 (1970) (“‘practices of state officials could well be so permanent 

and well settled as to constitute a “custom or usage” with the force of law.’”).

The Court has carefully reviewed the Third Amended Complaint, and finds that 

Plaintiffs have not pleaded sufficient factual matter to show that it is plausible that Adams 

County Sheriff had an official policy or custom that caused Kelsey’s assault. Rather, 

Plaintiffs merely state that, “[u]pon information and belief, the Sheriff of Adams County, 

Ohio, knew or should have known that Jeff McCarty had a propensity to sexually assault 

young females” due to several alleged complaints against him. (Doc. 36 ¶¶ 9-10 at 

PageID 193). Plaintiffs allege that retaining McCarty as an employee despite the alleged 

complaints is evidence of a policy or custom of “ignoring complaints from its outsiders 

towards Deputy Sheriffs” and “facilitating wrongful activity by its Deputy Sheriffs.” (Id. ¶¶ 

16-17 at PageID 194). Plaintiffs do not allege that Defendant Adams County Sheriff was 

aware of any specific complaints against or prior misconduct by Jeffrey McCarty—or any 

other Deputy Sheriffs—except that “he once ran a red light without his lights on, while 

driving a Sheriff’s car, and damaged a porch.” (Id. ¶ 41 at PageID 196).
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Plaintiffs, in their Memorandum in Opposition to Defendant Adams County Sheriff’s 

Motion for Judgment on the Pleadings, argue that Plaintiffs’ Third Amended Complaint 

does make “an allegation” of a policy or custom, and offered two affidavits in support of 

their contention. (Doc. 42 at PageID 244). However, the Court has since ruled to exclude 

these affidavits and will not consider them in conjunction with Defendant’s 12(c) motion. 

(Doc. 55 at PageID 314). 

Therefore, Plaintiffs have failed to meet the standard for pleading sufficient factual 

matter so as to make their Complaint plausible on its face. In light of this finding, the Court 

need not address the issue of whether Defendant is entitled to Qualified Immunity. 

As a final matter, in the alternative, Plaintiffs request leave to submit a fourth 

amended complaint. (Doc. 52 at PageID 243). Rule 15 governs amendments to pleadings 

before trial. FED. R. CIV. P. 15(a). A party can amend a “pleading once as a matter of 

course within” twenty-one days of serving the pleading, or “if the pleading is one to which 

a responsive pleading is required, 21 days after service of a responsive pleading or 21 

days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” FED. R.

CIV. P. 15(a)(1). Otherwise “a party may amend its pleading only with the opposing party’s 

written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). Plaintiffs do not cite Rule 

15, nor do they provide any analysis to say why leave to amend would be proper. (Doc. 

52 at PageID 243). Accordingly, the Court denies their delayed and cursory request.

IV. CONCLUSION

Consistent with the foregoing, Defendant Adams County Sheriff’s Motion for 

Judgment on the Pleadings (Doc. 39) is GRANTED. Count One of Plaintiffs’ Third 
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Amended Complaint is DISMISSED with PREJUDICE as to Defendant Adams County 

Sheriff. Plaintiffs’ request for leave to submit a fourth amended complaint is DENIED.

IT IS SO ORDERED.

 __s/ Michael R. Barrett______

Michael R. Barrett, Judge

United States District Court