Aaron Davis v. Tyler W.A. Duncan

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0359n.06

No. 26-3013

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AARON DAVIS,
Plaintiff-Appellant,

v.

TYLER W.A. DUNCAN,
Defendant,

DALE R. OSBORN, et al.,
Defendants-Appellees.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

OPINION
Before: STRANCH, BUSH, and MURPHY, Circuit Judges.
STRANCH, J., delivered the opinion of the court in which MURPHY, J., concurred.
BUSH, J. (pp. 16–19), delivered a separate dissenting opinion.
JANE B. STRANCH, Circuit Judge. This case arises from an assault by Tyler Duncan,
a corrections officer, against inmate Aaron Davis. Davis brought § 1983 claims against: Duncan
for Fourth Amendment violations; the director of the correctional facility, Dale Osborn, for
supervisory liability and failure to protect; and several institutional defendants for negligent hiring,
failure to train, and a custom of acquiescing to constitutional violations. All defendants except
Duncan moved for summary judgment on all claims against them, which the district court granted.
Davis now appeals the grant of summary judgment. Because the district court did not err in its
decision, we AFFIRM.

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I. BACKGROUND
This case arises from an assault by corrections officer Tyler Duncan, while employed at
the Multi-County Correctional Center (“MCCC”). It is undisputed that Duncan entered inmate
Aaron Davis’s cell and assaulted him. Davis brought four claims under 42 U.S.C. § 1983, alleging
that Duncan and several other defendants violated his constitutional rights. Relevant to these
claims is Duncan’s employment history.
Duncan first worked at the North Central Ohio Rehabilitation Center, a juvenile facility in
Marion, Ohio. While working at this facility, he was written up once for the use of force. He
testified that a 16-year-old juvenile had cornered himself and was throwing chairs at Duncan. After
attempting to talk him down for 10 to 20 minutes, Duncan “stepped in and grabbed him and
wrapped him up, and [they] went to the floor,” from which the juvenile suffered a rug burn. R.
51, Duncan Depo., PageID 879. Duncan was written up for the incident, but he was not otherwise
disciplined and was not terminated because of it.
Duncan then worked for an adult facility, Marion Correctional Institution. At the beginning
of his employment, he attended a month-long academy that included training on de-escalation
techniques, response to resistance, self-defense, and the use of pepper spray. Completion of this
training certified him as a corrections officer. Duncan was terminated because he was suspected
of bringing drugs into the facility, but he testified that he was later cleared because it was a nurse
he was dating that smuggled drugs into the facility.
In November 2019, the MCCC hired Duncan as a corrections officer. At the time,
Defendant-Appellee Dale Osborn was the Executive Director of MCCC. As a new officer, Duncan
was required to attend a 40-hour training session, which included a self-taught Response to
Resistance/Aggression Correspondence Course and open-book examination. Duncan testified that

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the course included material he knew from his prior training and that it was sufficient as a refresher
course. Duncan also testified that he thought all new officers were undertrained and that he could
have used more training. Osborn testified that he consulted with a captain at the facility to ensure
new hires were properly trained; did not recall discussing Duncan’s training or work history; but
thought that if anyone had expressed concerns about it, he would recall.
While at MCCC, Duncan was disciplined for two incidents prior to the assault on Davis.
In the first incident, Duncan attempted to open a cell door and “go in on an inmate that was high
on meth and yelling at Duncan.” Duncan’s supervisor, Sergeant Andrew Jones, took the keys out
of the lock, pulled Duncan’s hands away, and shut the cell door. Jones documented this with an
incident report. Duncan testified that he wanted to go in the cell to prevent the inmate from
harming himself because the inmate was slamming his head against the wall and had blood running
down his face. In the second incident, Jones wrote-up Duncan for threatening to punch an inmate
and reported the incident to his lieutenant.
Davis was incarcerated at MCCC based on a suspected parole violation. On April 17,
2020, Duncan was escorting Davis back to his cell when they got into a verbal argument. It is
undisputed that the argument turned physical, as Duncan entered Davis’s cell and Davis
“ultimately went to the ground and hit his head on the wall.” R. 62, Summ. J. Op., PageID 1424.
Duncan was later charged and convicted of assault based on this incident.
Davis sued Duncan, Osborn, Marion County, Hardin County, and Marion-Hardin
Correction Commission (“MHCC”).
1
He brought four claims under 42 U.S.C. § 1983, including:
excessive use of force and unreasonable seizure based on the Fourth Amendment (Count I); failure

1
Davis also sued another corrections officer, Brandon Taylor, but ultimately withdrew his claims
against Taylor during summary judgment proceedings. The district court dismissed Taylor from
the action, and Davis does not challenge this dismissal on appeal.

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to protect under the Eighth Amendment (Count II); a claim for supervisory liability against Osborn
(Count III); and a Monell claim against the Counties and MHCC (collectively, the “Institutional
Defendants.”) (Count IV). All Defendants excluding Duncan (hereinafter, “Defendants”) moved
for summary judgment as to all claims against them, which the district court granted. The court
then entered judgment in favor of all Defendants except Duncan, dismissed them from the case,
and finding no just reason for delay, certified their dismissal under Federal Rule of Civil Procedure
54(b).
Davis timely appealed.
II. JURISDICTION
Under Federal Rule of Civil Procedure 54(b), a district court “may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.” To properly certify a dismissal under Rule 54(b),
a district court must (1) “expressly direct the entry of final judgment as to one or more but fewer
than all the claims or parties in a case,” and (2) “expressly determine that there is no just reason to
delay appellate review.” Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 500 (6th
Cir. 2012) (quoting Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994)).
We review the first component de novo and the second for abuse of discretion. Gavitt v. Born,
835 F.3d 623, 638 (6th Cir. 2016). Here, the district court directed the entry of final judgment as
to all Defendants except Duncan and expressly determined that there was no just reason to delay
appellate review.
Although no party challenges the district court’s decision to certify an appeal under Rule
54(b), the dissent asserts that the court erred by finding no just reason for delay. Yet the district
court’s certification order “merits substantial deference.” Solomon v. Aetna Life Ins. Co., 782 F.2d

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58, 61 (6th Cir. 1986). We have told courts to consider a “nonexhaustive list of factors” when
deciding whether there is no just reason for delay. Gen. Acquisition, 23 F.3d at 1030 (citation
omitted). Among these factors are “the relationship between the adjudicated and unadjudicated
claims,” “the possibility that the need for review might or might not be mooted by future
developments in the district court,” and the equities and efficiencies of the case. Id. (citation
omitted). We see no abuse of discretion in the way the district court analyzed these factors.
The dissent, by contrast, would adopt a bright-line rule: no just reason for delay could ever
exist if “the outcome on the issues pending in the district court could moot the issues on appeal.”
Diss. at 16. But this rule misreads our caselaw, which turns on a totality of the circumstances test
that treats this mootness concern as merely one factor. See Gen. Acquisition, 23 F.3d at 1030.
Besides, the district court did not abuse its discretion in the way that it considered this mootness
factor. The dissent asserts that the district court improperly certified the appeal because “Duncan
would be unlikely to contest (much less win on) liability for the underlying constitutional
violation,” which is necessary to establish a Monell claim against the Institutional Defendants.
Diss. at 16. While the dissent may be correct that the constitutional violation issue could
hypothetically allow us to avoid deciding the issues in Davis’s appeal of the court’s dismissal of
the Monell claims, the district court did not abuse its discretion in finding this eventuality unlikely.
The court explained that Duncan’s liability for a constitutional violation will not affect the Monell
claims on appeal because those claims involve “questions of institutional policy and custom” while
Duncan’s liability turns on his personal actions (for which he has been criminally convicted). Not
only that, Davis indicated that he would appeal the Monell claims no matter what happened in the
district court on the constitutional claim against Duncan. All told, the court properly exercised its
discretion in determining that there was no just reason for delay. See 10 Moore’s Federal Practice

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§ 54.22; see also 10 Charles A Wright, et al., Federal Practice and Procedure Civil § 2656, at 45
(4th ed. 2014).
Accordingly, we have jurisdiction over this appeal.
III. LEGAL ANALYSIS
A. Standard of Review
We review a district court’s grant of summary judgment de novo. Alford v. Deffendoll,
165 F.4th 490, 495 (6th Cir. 2026). Summary judgment is proper if “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the non-moving party.” Petsche v. Hruby, 172 F.4th
475, 480 (6th Cir. 2026) (quoting Kirilenko-Ison v. Bd. of Educ. Of Danville Indep. Schs., 974 F.3d
652, 660 (6th Cir. 2020)). We view “the evidence in the light most favorable to the party opposing
the motion,” which “includes drawing all justifiable inferences in [their] favor.” Id. (quoting
Kirilenko-Ison, 974 F.3d at 660).
As a preliminary matter, Davis argues that the district court erred by resolving factual
disputes in favor of Defendants, in violation of Tolan v. Cotton, 572 U.S. 650 (2014) (per curiam).
The Tolan Court vacated a decision from the Fifth Circuit because it “failed to view the evidence
at summary judgment in the light most favorable to [the non-moving party] with respect to the
central facts.” 572 U.S. at 657. Davis contends that the district court violated Tolan in two ways:
by disregarding the import of the Jones cell-entry incident and ignoring evidence of MCCC’s
culture.
Regarding the Jones cell-entry incident, Davis contends that the district court erred in
concluding that “the only testimony [it had] regarding Duncan’s intent [when attempting to enter

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another inmate’s cell] is that he wanted to help the inmate.” Appellant’s Br. 25–26 (citing R. 62
at PageID 1444). He argues that the district court ignored other evidence of Duncan’s intent,
including Officer Jones’s actions during the incident and Davis’s characterization of Duncan’s
intent. But Jones’s actions during the incident are not testimony and do not contradict the district
court’s conclusion about the testimony before it. Davis’s description of the incident, moreover,
does not meaningfully contradict Duncan’s testimony because Davis was not present at this
incident and could not evaluate Duncan’s intent. Accordingly, Davis has not shown that the district
court improperly resolved factual disputes in Duncan’s favor regarding this incident.
Davis also argues that the district court improperly discounted testimony about MCCC’s
institutional culture because, though Davis failed to cite it, the testimony exists in the record and
Defendants cited it.
2
Although testimony about MCCC’s culture may exist in the record, Davis
was obligated to “set forth specific facts showing that there [was] a genuine issue for trial,” which
he failed to do. Franklin v. Franklin County, 115 F.4th 461, 470 (6th Cir. 2024) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
The district court “was not required to comb the record sua sponte in search of factual
disputes.” Reed v. City of Memphis, 735 F. App’x 192, 201–02 (6th Cir. 2018) (citing Guarino v.
Brookfield Twp. Tr., 980 F.2d 399, 404–05 (6th Cir. 1992)). It acknowledged that Davis’s
“opposition brief is rife with allegations of a ‘toxic culture,’” but explained that “it is essentially
void of specific examples or record citations to substantiate these characterizations.” R. 62, Summ.
J. Op., PageID 1448. In so concluding, the district court did not ignore or discount Davis’s
evidence; instead, it simply noted that Davis had failed to point to evidence in the record. Davis,

2
Davis also argues that the district court ignored the MCCC culture evidence when it characterized
the record as containing only “isolated incidents” of excessive force. But the language Davis
quoted does not appear in the district court’s opinion.

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therefore, has failed to show that the district court improperly weighed the evidence or resolved
factual disputes in favor of Defendants regarding the MCCC culture evidence.
B. Monell Claims
Davis asserts that the Institutional Defendants are liable for Duncan’s assault pursuant to
42 U.S.C. § 1983. To establish municipal liability under § 1983, a plaintiff must show that a
municipal policy or custom caused the alleged federal violation. Burgess v. Fischer, 735 F.3d 462,
478 (6th Cir. 2013). We have recognized at least four avenues to do so: “(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
[of] or acquiescence [in] federal rights violations.” Thomas v. City of Chattanooga, 398 F.3d 426,
429 (6th Cir. 2005). Davis relies on the third and fourth avenues, arguing that the Institutional
Defendants failed to properly train Duncan; had a custom of acquiescing to constitutional
violations; and negligently hired Duncan.
3
We address each argument in turn.
1. The Failure to Train Claim
Davis argues that the district court erred in granting summary judgment to the Institutional
Defendants on his failure-to-train Monell claim. To succeed on that claim, a plaintiff must show
that “(1) the training [] was inadequate for the tasks performed; (2) the inadequacy was the result
of the municipality’s deliberate indifference; and (3) the inadequacy was closely related to or
actually caused the injury.” Ouza v. City of Dearborn Heights, 969 F.3d 265, 286–87 (6th Cir.
2020) (quoting Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006)). There are
at least two ways to establish the second factor regarding deliberate indifference. The most

3
Davis also appeared to bring a negligent retention and supervision claim in district court, but he
does not challenge the court’s dismissal of those claims on appeal.

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common way is by showing that the municipality failed to respond “to repeated complaints of
constitutional violations by its officers.” Id. at 287 (quoting Cherrington v. Skeeter, 344 F.3d 631,
646 (6th Cir. 2003)). In “a narrow range of circumstances,” however, a plaintiff can establish
deliberate indifference based on a single incident by showing that the municipality “fail[ed] to
equip law enforcement officers with specific tools to handle recurring situations.” Id. (quoting Bd.
of Comm’rs v. Brown, 520 U.S. 397, 409 (1997)). Given the officers’ assigned duties, “the need
for more or different training [must be] so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the [defendants] can reasonably be said to have been
deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).
It appears that Davis relies on the single incident method as he does not identify repeated
constitutional violations resulting from inadequate training. Instead, he asserts that Duncan’s
training was inadequate because it consisted of a self-taught course with an open-book
examination.
4
He contends that MCCC did not offer practical instruction, provide feedback, or
review Duncan’s completed exam. Davis argues that the “real training” was MCCC’s culture,
which “trained [Duncan] to escalate.”
Despite this, Davis concedes that MCCC’s formal training program taught “de-escalation”
and “told Duncan not to use excessive force.” Duncan testified that he knew from his training that
he was not permitted to enter Davis’s cell under the existing circumstances. New MCCC
corrections officers are required to attend a forty-hour training session within the first few months
of employment, which Duncan did. Duncan testified that while at MCCC, he watched instructional

4
Davis also contends that Duncan testified that the answers to the examination were “common
knowledge” and that the officers “maybe copied each other.” Appellant’s Br. 45 (citing R. 51,
PageID 882–83, 887). Davis’s record cites, however, do not support this assertion; instead, they
show only that the officers were given an open-book examination.

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videos, attended refresher courses, and shadowed other officers. MCCC also required new officers
to attend a month-long, off-site training program about response-to-resistance and de-escalation
techniques, but Duncan had already taken the course while at another correctional facility. He also
testified that his response-to-resistance training at MCCC was sufficient as a refresher because he
already knew the material from his previous course. And although Duncan requested additional
training, he did so to become a transport officer and that training did not relate to the use of force.
Based on this record, the need for additional training was not “so obvious, and the inadequacy so
likely to result in the violation of constitutional rights,” that the Institutional Defendants were
deliberately indifferent to the need. See Harris, 489 U.S. at 390.
The record further shows that any purported training inadequacy was not closely related
to, or did not actually cause, Davis’s injury, the third element of the Ouza test. As noted above,
Duncan testified that he knew, based on his training, that he was not permitted to enter Davis’s
cell in these circumstances. Therefore the district court was correct in concluding that any claimed
training inadequacy was not the “moving force” behind Duncan’s assault. See Alman v. Reed, 703
F.3d 887, 903 (6th Cir. 2013) (quoting Brown, 520 U.S. at 404).
Accordingly, Davis has failed to show a genuine dispute of material fact as to his failure-
to-train claim, and we affirm the district court’s grant of summary judgment on that Monell claim.
2. Custom of Acquiescing to Constitutional Violations
Under the fourth avenue for establishing municipal liability, Davis argues that the
Institutional Defendants had a custom of acquiescing to unconstitutional conduct, which led to
Duncan’s assault. To establish a Monell claim based on a custom of acquiescing to constitutional
violations, a plaintiff must show “(1) the existence of a clear and persistent pattern of
unconstitutional conduct; (2) notice or constructive notice on the part of the [defendant]; (3) the

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[defendant’s] tacit approval of the unconstitutional conduct, such that [its] deliberate indifference
in [its] failure to act can be said to amount to an official policy of inaction; and (4) that the
[defendant’s] custom was the ‘moving force’ or direct causal link in the constitutional
deprivation.” Franklin, 115 F.4th at 472 (citation modified). The district court granted summary
judgment to the Institutional Defendants on this claim, finding that Davis failed to establish a
pattern of unconstitutional conduct and that these Defendants were not deliberately indifferent.
Davis appeals the district court’s conclusion, arguing that he has established each element of this
Monell claim.
To establish a clear and persistent pattern, “the prior examples of wrongdoing must violate
the same constitutional rights [as the plaintiff’s] and violate them in the same way,” although they
need not be identical. Id. (citation modified). While we have not specified how many incidents
constitute a clear and persistent pattern, we have held that a single incident is insufficient. Winkler
v. Madison County, 893 F.3d 877, 902 (6th Cir. 2018). On appeal, Davis posits four incidents that
he argues show a pattern of unconstitutional conduct: (1) a lieutenant who assaulted a handcuffed
inmate in a bathroom; (2) a sergeant who slapped an unconscious inmate; (3) an officer who put
hand sanitizer in an officer’s drinking water
5
; and (4) an unspecified claim that supervisors
routinely entered cells to scream at, physically subdue, and slam inmates against walls.
Davis’s argument falters initially because he did not identify the first three incidents to the
district court in his summary judgment briefing. The district court noted that Davis’s opposition
brief was “essentially void of specific examples or record citations” and “[did] not cite or even

5
Although Davis asserts in his briefing that the officer put hand sanitizer in the drinking water of
an inmate—not an officer—the record does not support this assertion. The deposition transcript
that Davis cites shows that an officer put the hand sanitizer in another officer’s drinking water. R.
49, Cox Dep., PageID 772.

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describe factually” any other use of force incident apart from the incident at issue in this case. R.
62 at PageID 1448. And though our review is de novo, we review only the arguments presented
to the district court and generally do not consider newly presented arguments on appeal. Reed,
735 F. App’x at 202.
Even if we were to consider these four claims on appeal, they do not establish a clear and
persistent pattern. Two of the incidents do not involve the use of force against inmates. The hand
sanitizer incident, for example, did not involve an inmate or the use of force. And the slapping
incident involved a sergeant using sternum rubs and face slaps to revive an unconscious inmate
who had attempted suicide—unlike Duncan’s assault on Davis. The last incident amounts to
general allegations regarding the use of force. Davis testified that officers would enter cells and
scream at inmates or cuff them and take them to booking. Although the officers would not “punch
them or anything like that,” they would “definitely make sure they knew they were getting
handcuffed, like slam them against the wall or put them on the ground.” R. 51, PageID 915. This
testimony describes a range of behavior—from entering an inmate’s cell to handcuff him and take
him to booking to entering a cell to assault an inmate. Davis, however, fails to point to any incident
other than his own in which an officer improperly entered an inmate’s cell then engaged in an
assault.
On appeal, Davis has therefore identified two specific incidents involving the use of force:
assault of a handcuffed inmate and Duncan’s use of force on Davis. We have found that three
discreet incidents arising in one investigation is insufficient to establish a clear and persistent
pattern of unconstitutional conduct. Peet v. City of Detroit, 502 F.3d 557, 568 (6th Cir. 2007). On
this record, where Davis has identified only one use-of-force incident apart from his own assault,

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we find that he has not pointed to specific, discrete incidents sufficient to establish a clear and
persistent pattern.
6
We therefore affirm the summary judgment grant to Defendants.
3. Negligent Hiring
Davis also challenges the district court’s grant of summary judgment to the Institutional
Defendants on his negligent hiring claim. He asserts that a negligent hiring claim “requires ‘actual
or constructive notice that a particular applicant may be highly likely to inflict’ constitutional
injury.” Appellant’s Br. 58 (citing Brown, 520 U.S. at 411). But Davis misstates the legal standard
for a negligent hiring claim and misquotes Brown. That decision teaches that “culpability simply
cannot depend on the mere probability that any officer inadequately screened will inflict any
constitutional injury. Rather, it must depend on a finding that this officer was highly likely to
inflict the particular injury suffered by the plaintiff.” 520 U.S. at 412 (emphasis in original). The
“connection between the background of the particular applicant and the specific constitutional
violation alleged must be strong.” Id.
On appeal, Davis contends that the district court overlooked evidence of an “escalating
trajectory,” involving “discipline for use of force against a juvenile, followed by termination from

6
Davis cites two cases in support of this Monell claim. Though neither help him, we address them
briefly for thoroughness. First, Davis attempts to show a pattern of unconstitutional conduct by
pointing to MCCC’s culture of violence and institutional failures, which he says this court may
consider pursuant to Thomas v. City of Chattanooga, 398 F.3d 426 (6th Cir. 2005). He asserts that
Thomas “analyz[es] the ‘quality and nature’ of the evidence,” creating a framework that “evaluates
the totality of evidence bearing on institutional practice, not merely the number of documented
incidents.” Appellant’s Br. 36. But Thomas does not contain this quoted language, nor does it
stand for this proposition. Instead, Thomas looked to the number of similar incidents, holding that
the plaintiffs failed to establish a Monell claim because they “failed to show several separate
instances of the alleged rights violation.” 398 F.3d at 434. Thomas, therefore, does not support
Davis’s argument because he too failed to identify multiple use-of-force incidents. Davis also
argues that reversal is warranted based on Poynter v. Bennett, 162 F.4th 664 (6th Cir. 2025). But
the Sixth Circuit has granted en banc rehearing in Poynter and vacated the decision. Poynter v.
Bennett, 169 F.4th 716 (6th Cir. 2026) (order).

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another correctional facility, followed by [a] documented cell-entry incident requiring physical
intervention, followed by documented habitual threats.” Appellant’s Br. 58. Two of these
incidents, the attempted cell entry and the threats, occurred at MCCC after Duncan was hired, so
they have no bearing on Duncan’s pre-hire background in a negligent hiring claim. Further,
Duncan’s termination from another correctional facility for alleged drug smuggling was not due
to any use of force and is therefore not related to the injury suffered here. Finally, Davis has
provided no argument as to why the single instance of use of force, in a different situation than we
have here, is sufficient to provide notice and create a strong connection to Duncan’s use of force
against Davis. Accordingly, we affirm the district court’s grant of summary judgment as to the
negligent hiring claim.
C. Supervisor Liability Claim
Davis contends that the district court erred in granting summary judgment to Osborn on
the supervisory liability claim.
7
He argues that, although Osborn did not know about Duncan’s
assault, Osborn intentionally structured conditions at MCCC so that he would not learn of such
unconstitutional conduct. “An official cannot be held liable for the constitutional violations of
subordinates under a theory of respondeat superior, meaning that [he] ‘cannot be held liable
simply because . . . [he] was charged with overseeing’ subordinate officers who violated the
plaintiff’s constitutional rights.” Venema v. West, 133 F.4th 625, 633 (6th Cir. 2025) (quoting
Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016)). To hold a supervisor liable, a
plaintiff must show that the supervisor “at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct.” Garza v. Lansing Sch. Dist., 972 F.3d 853, 865 (6th

7
Davis’s briefing on appeal does not address the district court’s grant of summary judgment to
Osborn on the failure-to-protect Eighth Amendment claim.

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Cir. 2020) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). The supervisor must
have engaged in “some active unconstitutional behavior” but it “need not be active in the sense
that the supervisor must have physically put his hands on the injured party or even physically been
present at the time of the constitutional violation.” Id. (citation modified). A supervisor, for
example, may knowingly acquiesce in the subordinate’s unconstitutional conduct “through the
execution of his job functions, including by failing to take precautions against likely violations.”
Id. (citation modified).
We have indicated that a supervisor is liable for an employee’s use of force when the
supervisor failed to train and supervise the officer to avoid the use of excessive force, failed to
properly investigate the allegations, and attempted to cover-up the unconstitutional conduct. Id.
at 865–66. Here, although Osborn did not directly train Duncan, he delegated the training to his
Captain. After the assault, a prompt investigation occurred, and Duncan was charged and
convicted of assault. On appeal, Davis has not pointed to any other evidence creating a genuine
dispute of material fact as to whether Osborn knew or implicitly authorized the assault.
Accordingly, we affirm the district court’s grant of summary judgment.
IV. CONCLUSION
For the forgoing reasons, we AFFIRM the district court’s grant of summary judgment.

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JOHN K. BUSH, Circuit Judge, dissenting. A district court abuses its discretion in
certifying a case for immediate appeal when the outcome on the issues pending in the district court
could moot the issues on appeal. Soliday v. Miami County, 55 F.3d 1158, 1163 (6th Cir. 1995);
Corrosioneering, Inc. v. Thyssen Env’t Sys., Inc., 807 F.2d 1279, 1284–85 (6th Cir. 1986). That
is the case here. The district court’s primary rationale for certifying this case for immediate appeal
was that Duncan would be unlikely to contest (much less win on) liability for the underlying
constitutional violation, but that is far less certain than the district court makes it sound.
A plaintiff cannot win on a Monell or supervisory-liability claim without first establishing
an underlying constitutional violation. See, e.g., Martinez v. Wayne County, 142 F.4th 828, 845
(6th Cir. 2025); McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006). True,
Duncan pleaded guilty to state charges in state court, but guilty pleas do not carry preclusive effect
in Ohio. State ex rel. Welsh Enters., Inc. v. Indus. Comm’n, 154 N.E.3d 505, 513–14 (Ohio Ct.
App. 2020); Clark v. Irvin, 9 Ohio (9 Hammond) 131, 132–33 (1839); see also Marrese v. Am.
Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985) (preclusive effect of state-court
judgment is governed by the law of the State in which the judgment was entered). Rather, the plea
is, at most, an admission to the facts that took place, which a jury is free to reject. Welsh Enters.,
154 N.E.3d at 513–14. That means Duncan’s liability for a constitutional violation is still an open
question as a formal matter.
It is also an open question as a practical matter. It is far from clear that the facts admitted
in the state-court proceedings constitute an Eighth Amendment violation. Ohio’s felonious assault
statute requires the State to prove that the defendant knowingly caused or attempted to cause
physical harm to the victim, a rule that does not require that the defendant make contact the victim.
See State v. Peters, 231 N.E.3d 37, 46–47 (Ohio Ct. App. 2023). By contrast, a plaintiff alleging

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excessive force under the Eighth Amendment must demonstrate that the officer used force
“maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per
curiam) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). Not “every malevolent touch by a
prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. So a guilty plea in a
garden-variety felonious-assault case might not even be persuasive (much less dispositive) on the
question of whether the defendant also used excessive force in violation of the Eighth Amendment.
Thus, a jury could easily side with Duncan at trial. And if the jury finds for Duncan, then
Davis’s claims against appellees here are absolutely barred, regardless of how we rule in this
appeal—i.e., the issues on appeal would be moot. All this means certifying the order on summary
judgment for immediate appeal was an abuse of discretion.
The majority does not dispute any of this. Instead, it argues that the district court did not
abuse its discretion because (1) the claims pending on appeal are distinct from the claims pending
in the district court, and (2) the district court dismissed all of the claims against appellees. Majority
at 4–5. But that is not the test. We first ask whether the district court properly entered final
judgment as to one claim or party in a case involving multiple parties or multiple claims under
Rule 54(b). Sherrod v. Wal-Mart Stores, Inc., 103 F.4th 410, 413–16 (6th Cir. 2024). If we
conclude that it has, then we separately ask whether the district court abused its discretion in
determining that there is no just reason for delay. In re Fifth Third Early Access Cash Advance
Litig., 925 F.3d 265, 275 (6th Cir. 2019). This is a conjunctive test, so both prongs need to be met,
and even if the first one is met, that does not mean the second one is automatically met. See id.;
see also Corrosioneering, 807 F.2d at 1283 (“Generally a finding that an issue being considered
for Rule 54(b) certification is ‘separate and distinct’ from remaining issues in a case will begin,
rather than end, the district court’s certification analysis.”). Contrary to what the majority seems

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to suggest, the district court’s finding that there is no just reason for delay is not enough—we must
independently review that finding for an abuse of discretion. See Corrosioneering, 807 F.2d at
1285; Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980).
The majority faults me for “adopt[ing] a bright-line rule” instead of the “totality of the
circumstances test” that our case law supposedly follows in this area. Majority at 5. But our circuit
has adopted a bright-line rule that certification under Rule 54(b) an abuse of discretion when the
trial could moot the issues on appeal. See Soliday, 55 F.3d at 1163 (holding that certification was
an abuse of discretion because “the result of [] first trial may obviate the need for this Court to ever
address the propriety of the grant of partial summary judgment” despite other factors cutting in
favor of certification); Corrosioneering, 807 F.2d at 1284 (holding that the potential that further
proceedings in the district court “could moot the need for review” of the issues pending on appeal
was “alone sufficient to warrant our finding that the district court abused its discretion in rendering
the Rule 54(b) certification”).
Indeed, the only case that the majority relies on to try and contest this outcome dismissed
an appeal that was certified under Rule 54(b) because “the potential for the challenged ruling to
be rendered moot . . . constitute[d] just cause to delay appellate review in this case.” Gen.
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1031 (6th Cir. 1994) (quoted in Majority at 5).
The majority may find this outcome unpalatable, but any alleged “convenience” in allowing an
immediate appeal “is insufficient to warrant Rule 54(b) certification.” Carpenter v. Liberty Ins.
Corp., 850 F. App’x 351, 356 (6th Cir. 2021). After all, when it comes to our subject matter
jurisdiction, we cannot elevate policy “concerns over jurisdictional rigor.” Wullschleger v. Royal
Canin U.S.A., Inc., 75 F.4th 918 (8th Cir. 2023) (footnote omitted), aff’d, 604 U.S. 22 (2025).

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* * *
Under our case law, a district court abuses its discretion in finding that there is no just
reason for delay if “the result of the [] trial may obviate the need for this Court to ever address the
propriety” of the district court’s ruling that is before us on appeal. Soliday, 55 F.3d at 1163.
Because the majority agrees with me that the trial could moot the issues on appeal, we were
obligated under our case law to dismiss the appeal for lack of appellate jurisdiction, even though
nobody contested our jurisdiction. See Gavitt v. Born, 835 F.3d 623, 638 (6th Cir. 2016) (“Yet,
again, although the certification has not been challenged, the court must still satisfy itself that the
certification was proper.”). Because the majority presses on anyway, I respectfully dissent.