IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

NICHOLAS ALSTON, Individually and on

Behalf of All Other Persons Similarly Situated

MONTGOMERY COUNTY JAIL

330 West Second Street

Dayton, OH 45422

KEITH BARBER, Individually and on

Behalf of All Other Persons Similarly Situated

MONTGOMERY COUNTY JAIL

330 West Second Street

Dayton, OH 45422

Plaintiffs,

v.

PHIL PLUMMER, Individually and in his

Official Capacity as Sheriff of Montgomery

County, Ohio

345 West Second Street

Dayton, OH 45422

Defendant.

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CASE NO. ___________________ 

COMPLAINT

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1. Plaintiffs, Jerome Walker, Nicholas Alston and Keith Barber, on behalf of themselves

and all similarly situated individuals (collectively “Plaintiffs”) bring this action against the 

Defendant, Phil Plummer, Sheriff of Montgomery County, Ohio. Plaintiffs are inmates of the 

Montgomery County Jail (the “Jail”). They seek monetary, declaratory and equitable relief 

based on the Defendant’s willful failure or deliberate indifference to constitutional, statutory and 

administrative mandates including but not limited to jail over-crowding, classification of 
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inmates, recreation and the imposition of punishment in the form of lock-downs in an arbitrary 

and capricious manner.

2. This lawsuit presents claims pursuant to the First, Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution; and Article I section 1 and Article I section 3 of 

the Ohio Constitution, vindication of which is brought pursuant to 42 U.S.C. Section 1983 and 

the court’s pendent jurisdiction..

3. Jurisdiction is conferred upon this Court by 28 U.S.C. §§ 1331 and 1343(3),(4),

which provide for original jurisdiction of the Plaintiffs’ claims arising under the laws of the 

United States and over actions to secure equitable and other relief.

4. This Court’s jurisdiction is also predicated upon 28 U.S.C. § 1367 as this class action

complaint raises claims pursuant to the Constitution and laws of Ohio, over which this Court 

maintains supplemental/pendent subject matter jurisdiction.

5. This lawsuit is presented as a class action pursuant to Rule 23 of the Federal Rules of

Civil Procedure. The class consists of all prisoners housed at the Montgomery County Jail both 

new and old sides. Plaintiffs are unable to state the exact number of the class without discovery 

of Defendant’s books and records, but avers on information and belief that the class is so 

numerous that joinder is not practicable. There are liability and damage questions of law and fact 

common to the class which predominate over any questions effecting individual members only. 

The claims or defenses of the representative parties are typical of the claims and defenses of the 

class, and the Plaintiffs will fairly and adequately protect the interests of the class. Additionally, 

prosecuting separate actions by or against individual class members would create a risk of 

inconsistent or varying adjudication with respect to individual class members that would 

establish incompatible standards of conduct for the party opposing the class or adjudications with 

respect to individual class members that, as a practical matter, would be dispositive of the 
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interests of the other members not parties to the individual adjudications or would substantially 

impair or impede their ability to protect their interests. Finally, the party opposing the class has 

acted or refused to act on grounds that apply generally to the class so that final injunctive relief 

or corresponding declaratory relief is appropriate respecting the class as a whole or the court 

finds that the questions of law or fact common to class members predominate over any questions 

affecting only individual members, and that a class action is superior to other available methods 

for fairly and efficiently adjudicating the controversy. (See Exhibit 1 attached hereto).

6. Venue is proper in this forum pursuant to 28 U.S.C. § 1391 because the claims

asserted arise in Montgomery County within the Southern District of Ohio and the Jail is located 

in that county and federal district.

7. The Plaintiffs have exhausted such administrative remedies as are available to them

with respect to the claims for relief asserted in this Complaint. They have complied with Section 

42 U.S.C. 1997(e) of the Prison Litigation Reform Act.

8. The Plaintiffs are inmates of the Jail, and the named Plaintiffs are suitable

representatives of the proposed Plaintiff class.

9. The Defendant, Phil Plummer, Sheriff of Montgomery County, Ohio, is a “person”

under 42 U.S.C. § 1983 and was at all times relevant to this action employed by the Montgomery 

County Sheriff’s Department and was responsible for supervising activities at the Jail. He is 

sued in his individual and official capacities. 

10. Pursuant to O.R.C. §341.01 the sheriff “shall have charge of the county jail and all

persons confined therein. He shall keep such persons safely, attend to the jail, and govern and 

regulate the jail according to the minimum standards for jails in Ohio promulgated by the 

department of rehabilitation and correction”.

11. As it relates to the Montgomery County Jail, the Sheriff is the policymaker for
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purposes of municipal liability and at all times relevant to this complaint acted under color of 

state law.

12. At all times relevant to this lawsuit the Defendants provided to each inmate of the Jail

an Inmate Handbook (the “Handbook”) which specifically defines the rights – as contrasted with 

the privileges – to which inmates of the Jail are entitled (See Exhibit 2 attached hereto).

13. In its introduction the Handbook confirms that the goal of the Jail “is to provide a safe

and secure environment that promotes positive inmate behavior” and that the means for 

achieving that goal is “fair, impartial and humane treatment of all individuals incarcerated in the 

Jail.”

14. The introduction to the Handbook further confirms that the Defendant’s

“responsibility is to ensure your basic needs are met, your basic rights are protected, your safety 

as well as the safety of our staff is maintained, and the needs of our community are met.”

15. Section C1.1 of the Handbook defines inmate rights as “something to which you are

entitled . . . protected by law and cannot be taken away from you . . ..” Plaintiffs claim a liberty 

interest in the rights guaranteed to them by the Handbook.

16. Among the specific rights enumerated in Section C1.3 of the Handbook are:

• A clean and healthy environment.

• Protection from personal abuse, corporal punishment, personal injury, 

property damage or harassment.

• Reasonable visitation and telephone contact with your lawyer(s).

• Reasonable access to available legal materials.

• Adequate medical, dental and mental health care.

• Recreation outside of your living quarters, if you so desire.

17. Long-standing and continuing over-crowded conditions at the Jail have, in a variety
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of ways, denied to the Plaintiffs basic rights to which they are entitled by constitutional and legal 

principles and by the express commitments made in the Handbook.

18. The over-crowding conditions have existed for at least two years. The jail inspection

conducted by the State of Ohio determined that the jail capacity was 443 inmates. (See jail 

inspection report attached hereto as Exhibit 3).

19. An action plan was to be developed and submitted by the Montgomery County

Sheriff to cure the over-crowding conditions. That plan was ineffective.

20. The over-crowding continued to at least the early part of July, 2018 as demonstrated

by the population reports attached hereto as Exhibits 4, 5, 6 and 7 .

21. The stated purpose of the State’s recommended housing capacity standard is to ensure

that staff and inmates are safe.

22. As demonstrated by Exhibit 3 attached hereto, the Jail housed Seven Hundred Ninety

One (791) inmates during its November 2016 State inspection.

23. Since that time the Jail has continued on a daily basis to house inmates in numbers

that exceeded accepted safety standards.

24. By the summer of 2018 the daily inmate population at the Jail was in the range of

Eight Hundred Thirty (830) individuals.

25. The over-crowding became so pronounced that the “Justice Committee for the

Montgomery County Jail” was formed pursuant to Res. 17-0530 “to serve as an Advisory 

Committee to the Montgomery County Commissioners and Montgomery County Sheriff’s 

Office”. The inmate population was unaffected by the committee formation. 

26. The Sheriff is a member of the Advisory Committee. Before joining the Committee

he knew or should have known about the conditions of the Montgomery County Jail which by 

statute, he is charged with operating.
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27. The Advisory Committee hired CGL Companies at a cost in excess of $100,000.00 to

perform a study of the Montgomery County Jail.

28. The consulting group reported to the Advisory group in mid-July, 2018. The

consultants reported that at the same time that funding and staffing at the jail have decreased, 

populations have increased. The jail now operates at a higher capacity than it was built to house. 

“Pods designed to house 48 inmates now house 104. Areas designated for activities have been 

converted to housing”. Banner headlines in the Dayton Daily News on July 19, 2018, 

pronounced “County Jail told to fix serious staffing, overcrowding issues”. (See Exhibit 8 

attached).

29. Settlements of Montgomery County Jail inmates’ complaints exceeded 1 million

dollars in 2017.

30. Over-crowding has produced situations where extra sleeping platforms have been

crammed into existing cells and where, in many instances, inmates have been required to sleep 

on the floor.

31. The Jail was designed with the placement of individual cells in Pods or units where

during daytime hours inmates were free to socialize and engage in meaningful and positive 

interpersonal relationships. They were free to associate and assemble pursuant to their 

constitutional rights. Indeed the Inmate Handbook indicates that the “Pod cells are opened at 

approximately 5:30 a.m. and remain open until approximately 11:00 p.m. except during meals 

and counts”. The hours of opening and closing may be adjusted but only for “your [inmate] 

safety or security reason”

32. As a result of safety concerns arising from over-crowding it has become standard

practice to have inmates in Pods locked into their separate cells at all times for up to twenty-two 

(22) or twenty-three (23) hours a day. This practice has transformed the Pods, whose uniqueness 
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allowed the inmates freedom of movement, recreation, hygiene, assemblage and association and 

access to the phones and hence attorneys, into a virtual solitary-confinement situation.

33. Upon information and belief the correction officers in charge of the Pod, typically one

for the 100 plus inmates in the Pod, use the lockdown as a form of discipline, and apply it 

arbitrarily and capriciously to the entire Pod, locking more than 100 inmates down for the 

violation of one inmate, thereby depriving all innocent inmates of their rights. Even when an 

inmate was absent from the Pod and in class, he was subjected to the arbitrary and capricious 

discipline, upon returning to the Pod.

34. Such lock-down practices deprive inmates in affected Pods of adequate opportunities

for telephone communications, exercise, showers, and other activities, including communications 

with attorneys and securing of resources to enable posting of bonds.

35. These problems are exacerbated by the facts that each Pod contains at least one

hundred four (104) inmates and that it is impracticable, if not impossible, to accommodate the 

needs of that many individuals in the hour or two that a pod is not in a lock-down state.

36. It is a common practice at the Jail to mix inmates charged with minor offenses with

violent offenders and other inmates afflicted with serious mental health problems. As a result, 

safety risks attendant on incarceration are unreasonably exacerbated.

37. Upon information and belief, an inmate being held on a petty theft charge from

Miamisburg Municipal Court, simply awaiting an assessment for treatment, was housed in the 

same Pod as an inmate facing a felony of the first degree. The misdemeanant had been housed 50 

days without the assessment having been performed.

38. “Sick inmates” believed to be those inmates who were on drugs at the time of arrest

and experiencing the aftereffects of withdraw while incarcerated, were subjected to physical 

violence when their conduct disrespected other inmates. 
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39. It has been reported that an inmate who suffered a swollen jaw, reported the medical

condition on a Thursday, but was not treated until the following Monday, all the while the jaw 

swelled and the inmate experienced unnecessary pain and suffering.

40. A significant percentage of the overall inmate population at the Jail is composed of

individuals who, because of insufficient funds, are unable to post bond for minor offenses, mixed 

with inmates who are charged with felony offenses, some of which are first degree felonies, 

sentenced inmates awaiting assessments and/or transportation, and inmates charged with sex 

offenses. Based on data analysis, and the assessment of other published reports, the county’s 

pretrial programs demonstrate the ability to improve pretrial outcomes, but is limited in its reach 

to only those charged with a felony or violent misdemeanor, leaving hundreds in jail awaiting 

appearance at any given time, while occupying law enforcement, including the Montgomery 

County Sheriff with elevated levels of recidivism and failure to appear. These pretrial detainees, 

awaiting appearances are mixed within the general population of the jail since over-crowding 

impacts classification. 

41. Although Classification is set forth in the handbook and to be based on six criteria: a)

Your behavior and attitude toward staff and other inmates; b) Your needs; c) Your current and 

past charges; d) Your level of security risk; e) Jail needs; f) Your behavior during previous 

periods of confinement. Investigation disclosed that a petty theft inmate who are post-plea 

awaiting assessment was housed with a pre-trial first degree felony offender. Over-crowding at 

the jail defeats the classification system established in the handbook. 

42. All class members are at risk of harm due to the following policies and practices, each

of which relates in whole or in part to the over-crowded conditions which have been created, 

permitted and maintained by the Defendant at the Jail he is statutorily charged with operating:

(a) Denial of a clean and healthy environment.
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(b) Failure to adequately supervise and classify inmates to ensure that they do not 

face an unreasonable risk of injury and violence from other incarcerated 

individuals.

(c) Use of force that subjects inmates to serious injury or the risk of serious injury 

even when such force is unnecessary to control behavior or maintain order in the 

Jail.

(d) Denial of adequate medical, dental and mental health care.

(e) Deprivation of reasonable visitation and telephone usage.

(f) Deprivation of reasonable telephone contact with lawyers and access to available 

legal materials.

(g) Deprivation of reasonable recreation. 

(h) Impact on the density of inmate population by incarceration of inmates charged 

with minor offenses who are financially unable to afford bail bonds.

43. Attached to this Complaint as Exhibit 9 and incorporated by reference is the now

expired Final Consent Decree entered by this Court on September 14, 1989 in a class action filed 

as Case No. C-3-89-036 as a means of addressing issues of over-crowding similar to those 

currently being experienced by the Plaintiffs.

44. Pursuant to R.C. 341.04 “the sheriff shall visit the county jail and examine the

condition of each prisoner, at least once during each month”. Thus the Sheriff, by his monthly 

visits, was actually aware of the unconstitutional conditions in which the inmates are confined 

and failed to remedy those conditions or was deliberately indifferent to those conditions. 

Additionally the Sheriff was put on actual notice of the overcrowding conditions by the 2016 

State Jail Inspection report, which resulted in the request from the State of Ohio to provide an 

action plan to remedy the deficiencies found by the jail inspector. Defendant was actually aware 
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that settlements to inmates exceeded 1 million dollars in 2017. Defendant was actually aware an 

Advisory Committee had to be formed by the County Commissioners to advise them on the 

running of the Montgomery County Jail, and that a contract in excess of $100,000.00 was 

authorized to study the jail. Defendant was aware the first report to the Advisory Committee, a 

member of which is the Defendant Montgomery County Sheriff, detailed the deficiencies and 

was reported under the banner headline in the local paper:“County jail told to fix serious staffing, 

overcrowding issues”, (See Exhibit 8 attached) the same admonition the State Jail Inspector 

informed the Sheriff of, as a result of the 2016 jail inspection and request for action plan to 

remedy the condition(s).

FIRST CLAIM FOR RELIEF

45. The Plaintiffs repeat the allegations contained in Paragraphs 1 through 44 of this 

Complaint as if fully rewritten herein and say that the over-crowded condition of the Jail and the 

policies and practices resulting from that condition subject the individual Plaintiffs and the class 

they represent to substantial risks of serious harm and injury from inadequate health care, 

violence between prisoners, and excessive force and has violated their right to basic human 

dignity and to be free from unconstitutional conditions under the Fourteenth Amendment to the 

United States Constitution. Those policies and practices have been and continue to be 

implemented by the Defendant and all persons acting in concert under color of state law, in their 

official capacity, and are the proximate cause of the ongoing deprivation to the individual 

Plaintiffs and the class they represent of rights secured under the Fourteenth Amendment.

46. The Defendant has been and is aware of all of the deprivations complained of 

herein, and he has condoned or been deliberately indifferent to such conduct. It should be 

obvious to the Defendant, and to any reasonable person, that the conditions imposed on class 
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members for many months or years cause tremendous mental anguish, suffering, and pain to 

such individuals. Moreover, the Defendant has repeatedly been made aware, through 

administrative grievances and written complaints, monthly visits statutorily mandated, and state 

inspections, that class members are currently experiencing or are at risk of significant and lasting 

injury.

47. The Plaintiffs have no adequate remedy at law for such violations.

SECOND CLAIM FOR RELIEF

48. The Plaintiffs repeat the allegations contained in Paragraphs 1 through 47 of this 

Complaint as if fully rewritten herein and say that by the policies and practices described herein 

the Defendants have subjected the individual Plaintiffs and the class they represent to a 

substantial risk of serious harm and injury from inadequate health care, violence between 

prisoners, and excessive force and have violated their right to be free from cruel and unusual 

punishment under the Eighth Amendment to the United States Constitution as that right is 

applied to inmates who have been sentenced, but await transportation, assessments, transfer to 

other institutions all of whom are housed in the general population with pretrial detainees who 

have substantially greater rights as they are presumed innocent. These policies and practices 

have been and continue to be implemented by the Defendant and all persons acting in concert 

under color of state law, in their official capacity, and are the proximate cause of ongoing 

deprivations of rights secured under the Eighth Amendment to the individual Plaintiffs and the 

class they represent.

49. The Defendant has been and is aware of all of the deprivations complained of 

herein, and he has condoned or been deliberately indifferent to such conduct. It should be 

obvious to the Defendant and to any reasonable person that the conditions imposed upon class 
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members for many months or years cause tremendous mental anguish, suffering, and pain to 

such individuals. Moreover the Defendant has repeatedly been made aware, through 

administrative grievances and written complaints, monthly visits statutorily mandated, state 

inspections, that class members are currently experiencing or are at risk of significant and lasting 

injury.

50. The Plaintiffs have no adequate remedy at law for such violations.

WHEREFORE, the Plaintiffs ask the Court to order the following relief:

A. That this lawsuit be certified under Rule 23 of the Federal Rules of Civil Procedure as 

a Class Action on behalf of present and future inmates of the Montgomery County 

Jail.

B. That injunctive relief be granted the Plaintiffs enjoining the Defendant from operating 

the Montgomery County Jail in violation of the minimum standards for full service 

jails in the State of Ohio, including maintaining population at or below the maximum 

permitted population based on the jail standards minimum square footage;

C. That a declaratory judgment be entered confirming that the Defendant has violated 

Constitutional and legal mandates by existing practices with respect to over-crowding 

at the Montgomery County Jail.

D. That a declaratory judgment be entered confirming that the Defendant has violated 

Constitutional and legal mandates by existing practices with respect to classification 

of inmates.

E. That a declaratory judgment be entered confirming that the Defendant has violated 

Constitutional and legal mandates by existing practices with respect to the nonrelease of inmates who represent no significant risk to society or in need for 

confinement.
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F. An award of damages, costs and reasonable attorney fees to Plaintiffs and their 

counsel in an amount to be determined by the Court and for all other relief to which 

this court determines the Plaintiffs entitled.

/s/ Lawrence J. Greger_________________ 

Lawrence J. Greger (0002592)

GREGER LAW OFFICE

120 West Second Street, Suite 1100

Dayton, OH 45402-1657

PHONE: (937) 223-3153

FAX: (937) 223-3008

E-MAIL: larry@gregerlawoffice.com

/s/ Anthony R. Cicero__________________ 

Anthony R. Cicero (0065408)

CICERO ADAMS, LLC

500 East Fifth Street

Dayton, OH 45402-2914

PHONE: (937) 424-5390

FAX: (937) 424-5393

E-MAIL: tonycicero@gocicero.com

/s/ David C. Greer______________________ 

David C. Greer (0009090)

BIESER, GREER & LANDIS, LLP

6 North Main Street, Suite 400

Dayton, OH 45402-1908

PHONE: (937) 223-3277

FAX: (937) 223-6339

E-MAIL: dcg@biesergreer.com

/s/ Ellis Jacobs_________________________

Ellis Jacobs (0017435)

ADVOCATES FOR BASIC LEGAL EQUALITY

130 West Second Street, Suite 700-E

Dayton, OH 45402-1501

PHONE: (937) 535-4419

FAX: (937) 535-4600

E-MAIL: ejacobs@ablelaw.org
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/s/ Anthony S. VanNoy____________________ 

Anthony S. VanNoy (0067052)

ANTHONY S. VanNOY, INC.

130 West Second Street, Suite 1624

Dayton, OH 45402-1502

PHONE: (937) 952-5043

FAX: (937) 496-5393

E-MAIL: avannoy@thevannoyfirm.com