Shine v. Mohr et al

Filing 11

Memorandum Opinion: Defendant's motion to dismiss is granted. The state law claims of assault and intentional infliction of emotional distress are dismissed. The Eighth Amendment claim against the Defendant is barred by immunity under t he Eleventh Amendment to the extent it is asserted against her in her official capacity. The sole claim remaining is that under the Eighth Amendment for excessive force as asserted against the Defendant in her individual capacity. re 9 Judge Jeffrey J. Helmick on 3/27/2018. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Douglas Shine, Jr.,

Case No. 3:17-cv-1140
Plaintiff

v.

MEMORANDUM OPINION

Gary Mohr, et al.,
Defendants
I. BACKGROUND
The pro se Plaintiff initiated this action under 42 U.S.C. § 1983 based upon the following:
Plaintiff alleges Bentham assaulted him in the day room. He contends he
cooked his food in the microwave with permission from the male corrections officer.
When he attempted to put his cup in the doorway of his cell, Bentham allegedly
slammed the door on his hand and broke his knuckles. He asked for medical
attention and Bentham denied his request. The Plaintiff was eventually taken to an
outside hospital and treated for nerve damage and a broken hand. In his complaint
he seeks monetary damages for assault, intentional infliction of emotional distress
and retaliation for reporting the incident.
(Doc. No. 4 at p. 1). The complaint named several defendants including ToCI Corrections Officer
Ashley Bentham.
On December 27, 2017, I sua sponte dismissed the retaliation claims and the other claims
against all defendants except for Bentham. Only the claims raising a violation under the Eighth
Amendment, and state tort claims for assault and intentional infliction of emotional distress remain
against Defendant Bentham. (Doc. No. 4).
This matter is now before me on Defendant Bentham’s unopposed motion to dismiss.
(Doc. No. 9). For the reasons stated below, the Defendant’s motion is well taken.

II. DEFENDANT’S MOTION TO DISMISS
The Sixth Circuit recently affirmed the standard of review in a motion to dismiss under Fed.
R. Civ. P. 12(b)(1):
“Challenges to subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) ‘come in two varieties: a facial attack or a factual attack.’” Carrier
v. Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg.
Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). “A facial attack
on the subject-matter jurisdiction” . . . . “questions the sufficiency of the pleading.”
Gentek Bldg. Prods., Inc., 491 F.3d at 330 (citing Ohio Nat’l Life Ins. Co. v. United States,
922 F.2d 320, 325 (6th Cir. 1990)). “When reviewing a facial attack, a district court
takes the allegations in the complaint as true,” just as in a Rule 12(b)(6) motion. Id.
(citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325). . . .
A factual attack, on the other hand, raises a factual controversy requiring the
district court to “weigh the conflicting evidence to arrival at the factual predicate that
subject-matter does or does not exist.” Gentek Bldg. Prods., Inc., 491 F.3d at 330
(citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325).
Wayside Church v. Van Buren County, 847 F.3d 812, 816-17 (6th Cir. 2017).
In reviewing a factual challenge, a court may examine evidence, including evidence outside
of the pleadings, of its power to hear a case. Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir.
2014). It is axiomatic that the “[p]laintiff bears the burden of establishing that subject matter
jurisdiction exists.” Id. (Citation omitted).
The Defendant requests dismissal of the state law claims of assault and intentional infliction
of emotional distress. As to Eighth Amendment claim, the Defendant requests immunity to the
extent that claim is asserted against her in her official capacity.
With regard to official capacity claims, a state and its officials are not considered persons
when sued in their official capacity for money damages. Will v. Michigan Dep’t of State Police, 491 U.S.
58, 70-71 (1989). The Eleventh Amendment bars suit against the state or its agencies unless the
state has given express consent. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). As
Ohio has not given express consent to be sued in federal court, Mixon v. State of Ohio, 193 F.3d 389,
397 (6th Cir. 1999), the state or its instrumentalities are immune from suit for money damages. Wingo
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v. Tenn. Dept. of Corr., 499 Fed. Appx. 453, 454 (6th Cir. 2012). To the extent Defendant Bentham is
named in her official capacity, she is entitled to Eleventh Amendment immunity.
Regarding the state law claims asserted against Bentham in her individual capacity, any
discussion of immunity must be addressed by the Ohio Court of Claims:
“[W]hen faced with a claim of immunity to a pendent state claim, federal
courts look to the appropriate state law to ascertain the nature of the immunity
given. Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). Under O.R.C. § 2743.03,
Ohio’s Court of Claims has exclusive original jurisdiction of all civil actions against
the state permitted by the waiver of immunity contained in O.R.C. § 2743.02. GLA
Water Mgmt v. Univ. of Toledo, 196 Ohio App.3d 290, 963 N.E.2d 207, 211-12 (2011).
Thus, under Ohio law, state employees may not be sued unless and until the Court
of Claims has determined they are not entitled to immunity. Haynes, 887 F.2d at 704.
Kingsley v. Brundige, 513 Fed. Appx. 492, 496 (6th Cir. 2013). Bentham contends there is no case
pending in the Ohio Court of Claims by the Plaintiff on this issue. There is no opposition to this
statement by the Plaintiff. Accordingly, the Defendant is entitled to dismissal of the state law claims
of assault and intentional infliction of emotional distress to the extent they are asserted against her in
her individual capacity.
III. CONCLUSION
For the reasons stated above, the Defendant’s motion to dismiss (Doc. No. 9) is granted.
The state law claims of assault and intentional infliction of emotional distress are dismissed. The
Eighth Amendment claim against the Defendant is barred by immunity under the Eleventh
Amendment to the extent it is asserted against her in her official capacity. The sole claim remaining
is that under the Eighth Amendment for excessive force as asserted against the Defendant in her
individual capacity.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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