UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

 )

KRISTINA THOMPSON )

)

Plaintiff, )

) Case Number: 3:18-cv-00214-TMR

v. )

) Judge Thomas M. Rose

VILLAGE OF PHILLIPSBURG, et al. ) Magistrate Judge Michael J. Newman

)

Defendants. )

) 

)

)

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DEFENDANTS VILLAGE OF PHILLIPSBURG AND CHIEF OF POLICE MARK 

WYSONG’S REPLY IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS

PLAINTIFF’S FIRST AMENDED COMPLAINT

Defendants Village of Phillipsburg (“the Village”) and Chief of Police Mark Wysong 

(“Wysong”) (collectively “Defendants”), by and through their undersigned counsel, respectfully 

submit this Reply in Further Support of their Motion to Dismiss Plaintiff’s First Amended 

Complaint.

A. Plaintiff Has Not Stated a Claim for Inadequate Screening 

In support of her inadequate screening claim, Plaintiff argues that “Officer Sanderson’s 

employment record reveals multiple incidents of sexual misconduct, unreasonable searches and 

seizures, excessive force, and unauthorized police conduct regarding prostitution, which occurred 

over the approximately three years immediately prior to Chief Wysong and the Village hiring 

Officer Sanderson.” ECF Doc. 41, PAGEID # 272. As pled, such “misconduct” included viewing 

pornographic websites while on duty, leaving his post on multiple occasions, allowing a male to 

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enter the female housing unit, asking fellow recruits about sexual activities, displaying a picture 

of his genitals to members of the nursing staff at a hospital and speaking with a prostitute while 

on duty. (ECF Doc. 35 at ¶ 43, PAGE ID # 219-220; ECF Do. 41, PAGE ID # 272-273). If 

Plaintiff is aware of a single alleged constitutional violation committed by Sanderson prior to his 

employment with the Village, she failed to state it in her First Amended Complaint. 

Courts within this Circuit and across the country have held that pleading the mere existence 

of some prior misconduct is insufficient. See Sweat v. Butler, 90 F.Supp.3d 773, 783 (W.D. Tenn. 

2015); see also Wilson v. Trumbull County Dept. of Job and Family Services, No. 4:12 CV 02163, 

2013 WL 5820276, at *12 (N.D. Ohio Oct. 29, 2013) (dismissing inadequate screening claims 

because “Plaintiffs ple[d] no factual allegations suggesting that, in hiring and retaining 

Defendants[], the County was deliberately indifferent to the risk that they would violate Plaintiffs’ 

constitutional rights.”); Hicks v. Camden County, No. 16-3436 (JBS/JS), 2017 WL 68620, at *4 

(D.N.J. Jan. 6, 2017) (dismissing inadequate screening claim because “Plaintiff identifie[d] 

nothing in Officer Tucker’s background that should have led Defendants to conclude that he would 

deprive a citizen of constitutional rights.”); Johnson v. Metropolitan Government of Nashville and 

Davidson County, No. 3:10-0589, 2010 WL 3619790, at *3 (M.D. Tenn. Sept. 13, 2010) (There is 

no factual underpinning from which a conclusion plausibly could be drawn that there was anything 

in the backgrounds of these police officers to alert Metro that hiring them would result in the 

deprivation of a citizen’s constitutional rights, and that Metro was deliberately indifferent to the 

risk posed.”). 

While Sanderson’s prior work history may very well reflect his “immaturity and 

irresponsibility,” nothing in Sanderson’s background would make Wysong or the Village conclude 

“that the plainly obvious consequence of the decision to hire [Sanderson] would be the deprivation 

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of a third party’s federally protected right[s][.]” Board of County Com’rs of Bryan County, Okl. 

v. Brown, 520 U.S. 397, 411 (1997). Plaintiff’s inadequate screening must be dismissed. 

B. Plaintiff’s Argument that Chief Wysong Had Constructive Notice of 

Sanderson’s Alleged Sexual Assaults That Predated June 28, 2017 is Flawed

To support her failure to supervise and discipline claims1, Plaintiff points to similar alleged 

incidents (raised for the first time in her amended complaint) involving Sanderson that occurred 

weeks before the alleged June 28, 2017 incident with Plaintiff. See ECF Doc. 35, ¶¶ 26-31; ECF 

Doc. 41 at PAGE ID # 275-276. Plaintiff does not assert (nor could she) that Wysong or the 

Village had actual notice of the alleged incidents. Instead, Plaintiff asserts that “Chief Wysong 

had constructive knowledge of these [constitutional] violations because Chief Wysong should have 

known through supervising Officer Sanderson that he had committed these constitutional 

violations.” ECF Doc. 41, PAGEID #276. Plaintiff’s circular argument is flawed. Unreported 

constitutional violations allegedly committed by Sanderson in the weeks before June 28, 2017 do 

not equate to constructive notice to Wysong or the Village. See D’Ambrosio v. Marino, 747 F.3d 

378, 388 (6th Cir. 2014) (“Until the county had notice of persistent misconduct, it did not have 

‘the opportunity to conform to constitutional dictates,’ nor could its inaction have caused the 

deprivation of D’Ambrosio’s constitutional rights.”) (internal quotations omitted); Harris v. 

Goins, 156 F.Supp.3d 857, 864 (E.D. Ky. 2015) (dismissing custom-of-inaction theory and stating 

“Even if the allegations in the Complaint were sufficient to show a clear and persistent office-wide 

pattern of unconstitutional activity, the links between UNITE and the individual defendants are far 

too attenuated to support an allegation that UNITE had actual or constructive notice of the illegal 

conduct and tacitly approved of it.”). 

 

1 Plaintiff has abandoned her failure to train claim against the Village.

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Indeed, accepting Plaintiff’s argument would be tantamount to dispensing of the notice 

element of § 1983 claims predicated upon a failure to supervise or discipline theory. See Doe v. 

Claiborne County, Tenn. By and Through Claiborne County Bd. Of Educ., 103 F.3d 495, 508 (6th 

Cir. 1996); Pecsi v. City of Niles, 674 Fed.Appx. 544, 547 (6th Cir. 2017). Plaintiff’s failure to 

supervise and discipline claims must be dismissed.

C. Plaintiff Fails to State a Supervisory Liability Claim Against Wysong 

It is not disputed that Wysong was not present at the hotel on June 28, 2017 and had no 

involvement in the acts alleged to have deprived Plaintiff of her constitutional rights. See generally 

ECF Doc. 35). Plaintiff instead argues that “Chief Wysong at least implicitly authorized, 

approved, or knowingly acquiesced in Officer Sanderson’s conduct at issue because Chief Wysong 

knew of Officer Sanderson’s prior misconduct, yet failed to supervise, discipline, or train him to 

address the conduct, and the prior misconduct was related to the conduct at issue.” ECF Doc. 41, 

PAGEID # 280.

2

In doing so, Plaintiff ignores that “a supervisor cannot be held liable simply because he or 

she was charged with overseeing a subordinate who violated the constitutional right of another.” 

Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016); see also Munson v. Bryan, No. 

3:15-cv-0078, 2015 WL 4112429, *6 (M.D. Tenn. July 8, 2015) (dismissing supervisory liability 

claim because “Any attempt to hold a county official liable under § 1983 for the conduct of an 

employee based on the supervisor’s role in policymaking or employee training must be treated as 

an action against the supervisor not in his or her individual capacity, but in his or her official 

capacity, or an action against the county.”) (internal citation omitted). Further, “[a] supervisory 

 

2

In asking for leave to file her First Amended Complaint, Plaintiff represented to this Court that she was abandoning 

her § 1983 claims for failure to train. See ECF Doc. 18 at PAGE ID# 107. Now, Plaintiff explicitly argues that 

Wysong is liable under a supervisory liability theory predicated on Wysong’s failure to train Sanderson. See ECF 

Doc. 41, PAGE ID# 281-282.

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official’s failure to supervise, control, or train the offending individual is not actionable unless the 

supervisor either encouraged the specific incident of misconduct or in some other way directly 

participated in it.” McQueen v. Beecher Community Schools, 433 F.3d 460, 470 (6th Cir. 2006) 

(internal citations and quotations omitted); see also Jones v. Cincinnati, No. 1:04-CV-616, 2006 

WL 2987820, at *13 (S.D. Ohio Oct. 17, 2006) (“Supervisory liability would attach for the acts of 

the officers if the sergeants did more than play a passive role in the alleged violation or showed 

mere tacit approval of the goings on.”) (internal marks omitted).

Because Plaintiff does not allege facts to support her argument that Wysong encouraged 

Sanderson’s alleged misconduct or actively participated in it, Wysong is entitled to qualified 

immunity and the claims against Wysong in his individual capacity must be dismissed. See

McQueen, 433 F.3d at 470; Peatross, 818 F.3d at 241; Denkins v. Mohr, No. 2:13-CV-00584, 2014 

WL 4272823, at *3 (S.D. Ohio Aug. 29, 2014) (dismissing supervisory liability claims); King v. 

City of Columbus, Ohio, No. 2:18-cv-1060, 2019 WL 1508279, at *3 (S.D. Ohio April 5, 2019) 

(“First, King merely alleges that Chief Jacobs failed to act. Second, King’s attempt to hold Chief 

Jacobs liable in her individual capacity for her alleged failure to adequately train, supervise, and 

discipline Officer Mason and other Columbus police officers or for her adherence to or 

continuation of policies that caused Tyre King’s death ‘improperly conflates a § 1983 claim of 

individual supervisory liability with one of municipal liability.’ *** King has not alleged any 

specific actions of Chief Jacobs. Therefore, the Court dismisses King’s individual-capacity claims 

against Chief Jacobs.”) (internal quotation omitted); Virgil v. City of Newport, No. 16-224-DLBCJS, 2018 WL 344986, at *12 (E.D. Ky. Jan. 9, 2018) (dismissing supervisory-liability claim and 

stating, “Although Virgil claims that the supervisor-defendants’ failure to train and supervise 

encouraged and/or permitted the alleged constitutional violations, such indirect and passive 

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conduct is insufficient.”) (internal marks omitted); Bradford v. Bracken County, No. 09-115-DLB, 

2010 WL 11520681, at *5 (E.D. Ky. Feb. 1, 2010) (granting motion to dismiss because “Plaintiffs 

have failed to state a claim under § 1983 for supervisory liability because they neglected to allege 

facts demonstrating the Defendants [] specifically ‘encouraged’ or ‘directly participated’ in the 

events leading to Bradford’s death.”).

Respectfully submitted,

/s/ James H. Gordon

James H. Gordon – Trial Attorney (0068454)

Jeremy R. Kopp (0090577)

ANSA ASSUNCAO LLP

Two Miranova Place, Suite 300

Columbus, OH 43215

Telephone: 614-441-8682/4095

Facsimile: 614-441-4471

james.gordon@ansalaw.com

jeremy.kopp@ansalaw.com

Counsel for Village of Phillipsburg and Chief 

of Police Mark Wysong

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CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of May 2019, the foregoing was served via the 

CM/ECF filing and U.S. mail upon the following:

Kenneth J. Ignozzi, Esquire

131 N. Ludlow St., Suite 1400

Dayton, Ohio 45402

Counsel for Plaintiff Kristina Thompson (efiling)

Justin W. Sanderson, Sr. (A747540)

c/o Lorain Correctional Institution

2075 Avon Belden Rd.

Grafton, Ohio 44044 (U.S. mail)

/s/ James H. Gordon

Counsel for Defendants

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