Francis v. Altiere

Filing 133

Memorandum Opinion and Order: Defendant's motion for judgment on the pleadings (Doc. No. 116 ) is granted. All of plaintiff's claims are dismissed with prejudice. The Court certifies that an appeal from this decision could not be taken in good faith. 28 U.S.C. Section 1915(a)(3). Judge Sara Lioi on 10/21/2013. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALAN FRANCIS, # 562-142,
PLAINTIFF,
vs.

THOMAS L. ALTIERE,
DEFENDANT.

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CASE NO. 4:08CV55
JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is defendant’s motion for judgment on the pleadings
(Doc. No. 116), plaintiff’s opposition (Doc. No. 131), and defendant’s reply (Doc. No.
132).1 For the reasons discussed herein, the motion is GRANTED and this case is
dismissed with prejudice.
I. BACKGROUND
This case was initiated by the pro se plaintiff, Alan Francis (“plaintiff” or
“Francis”), on January 9, 2008. Plaintiff sued Trumbull County Sheriff Thomas L. Altiere
(“defendant” or “Altiere”) for numerous civil rights violations in connection with his
pretrial detention in the Trumbull County jail. Plaintiff was granted leave to proceed
without prepayment of the filing fee. Defendant filed his answer on May 30, 2008. On
June 17, 2008, after receiving notice that the parties consented to the jurisdiction of the

1

In his reply brief, defendant challenges the timeliness of the opposition brief. However, this Court rejects
that challenge and concludes that the opposition was timely filed.

magistrate judge, Judge Peter Economus, the district judge assigned to the case, issued an
order transferring the case to the docket of Magistrate Judge James S. Gallas.
On April 15, 2009, after full briefing on a motion to dismiss filed by
defendant, the magistrate judge issued an order dismissing plaintiff’s “Eighth
Amendment claims based upon allegations of unsanitary conditions, denial of exercise,
showers, mental health treatment, treatment for tremors and hyperventilation and
medication.” (Doc. No. 74 at 352.) The motion to dismiss was denied “with respect to
[plaintiff’s] claim of exposure to cold conditions without adequate clothing or bedding.”
(Id.)
Following additional proceedings, defendant filed a motion for summary
judgment. On December 17, 2009, the magistrate judge granted that motion and
dismissed the case with prejudice. (Doc. Nos. 92, 93.)
Plaintiff appealed only the December 17, 2009 ruling, not the ruling of
April 15, 2009. On July 26, 2012, the Court of Appeals for the Sixth Circuit reversed the
magistrate judge’s summary judgment ruling and remanded for further proceedings.
(Doc. Nos. 99, 101.) At that time, the case was assigned to the docket of the undersigned
judicial officer, since both Magistrate Judge Gallas and District Judge Economus had by
then retired.
On January 31, 2013, after several telephone conferences with the parties
and counsel, and having received written statements from both parties, this Court issued
an order reviewing the procedural and factual background2 and listing the following as
the remaining claims against defendant Altiere:

2

In this order, the Court also considered plaintiff’s request for appointment of counsel. The Court noted

1.
Plaintiff’s Eighth Amendment claim7 relating to bedding and
clothing while he was kept under suicide watch, which was arguably
unnecessarily extended due to failure to re-evaluate him at appropriate
intervals. This was the claim that formed the substance of the Magistrate
Judge’s summary judgment ruling that was overturned by the Sixth Circuit
on appeal.8 These allegations are all found in the “complaint” (Doc. No. 1
at 3, 5; Doc. No. 3 at 20, 20-21; Doc. No. 7 at 38) and this claim survives
the remand.
7

Since plaintiff was a pretrial detainee at the time, the Eighth
Amendment’s cruel and unusual punishment clause, which concerns
permissible punishment following adjudication of guilt, technically
does not apply. Ingraham v.Wright, 430 U.S. 651, 671-72, n.40 (1977).
Rather, state pretrial detainees “are protected under the Fourteenth
Amendment, which provides that ‘a detainee may not be punished prior
to an adjudication of guilt in accordance with due process of
law.’”Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005)
(quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). The protections
afforded by the two amendments are essentially the same. Therefore,
since the Sixth Circuit referred to the Eighth Amendment in its
discussion, this Court will do the same.
8

The court of appeals criticized the summary judgment ruling for
failing to consider, under Spencer v. Bouchard, 449 F.3d 721 (6th Cir.
2006), not only the alleged deprivations individually and in
combination, but “the interrelationship between the severe conditions
and their duration.” (Doc. No. 99 at 437.) The court also noted that,
because the actual duration of the deprivations of bedding, clothing and
mattress was unclear from the record, it could not make the
determination in the first instance. (Id.). Thus, remand was required.

2.
Plaintiff’s First Amendment claims, all of which were overlooked
by the Magistrate Judge. This fact was conceded by the defendant in its
brief before the Sixth Circuit. (See Doc. No. 99 at 432: defendant
conceded that the “trial court never adjudicated [plaintiff’s] allegations not
based on the Eighth Amendment.”) The First Amendment claims were
identified by the plaintiff as follows:
a. “[D]eni[al of] religious services/the right to practice his
religion[.]” (Merit Brief at 1.) Specifically, according to his
“complaint,” he was not allowed to participate in religious services
(Doc. No. 1 at 7; Doc. No. 7 at 41, ¶ 10), and was not allowed to
watch Pastor Joe Cameneti on local television on Sunday mornings
that ten (10) separate attorneys had responded in the negative to the Court’s Pro Bono Panel administrator’s
request to accept an appointment to represent plaintiff. Since there is no right to counsel in a civil case, and
since plaintiff had to date successfully represented himself, including on appeal, where he had prevailed,
the Court denied the motion. (See Doc. No. 115 at 503.)

at 11:00 (Doc. No. 1 at 7). In addition, although not specifically
raised in his merit brief, plaintiff generally alleged in his complaint
that the right to “active religious service . . . has been 100%
denied” for “his entire time at the jail” (Doc. No. 1 at 7; Doc. No. 7
at 41) and that, in August or September of 2007, when his pastor,
Mike Roberts, brought him prayer cards, they were not given to
him because they were laminated (Doc. No. 7 at 39-40).
b. “Denial of First Amendment right to freedom of speech[.]”
(Merit Brief at 1.) Specifically, plaintiff alleges that C.O. Karen
Thellman Martin told him he could not talk to “D.L.’s” unless he
wanted to join them. (Doc. No. 1 at 3.) He further alleges that, as a
general rule applied solely to him, he was not allowed to speak to
other inmates and could not exchange any materials between cells.
(Doc. No. 1 at 5.)
c. “[D]eni[al of] the First Amendment constitutional right to
petition the government for redress of grievances[.]” (Merit Brief
at 1-2.) Specifically, plaintiff alleges he was routinely denied the
opportunity to file any grievances, at least not without preapproval
by a C.O. (Doc. No. 1 at 3-4; Doc. No. 7 at 38-39); that he was
refused a grievance form by C.O. Mary Osbourne, who called him
a killer, but insisted this was not a grievable matter (Doc. No. 3 at
21); and, that he has filed grievances but never received a response
(Doc. No. 7 at 39).
3.
Plaintiff’s Eighth Amendment claim of “being subjected to disease
of the mouth wherein [plaintiff] was given a plastic thimble for a
toothbrush with extremely flimsy bristles.” (Doc. No. 99 at 432, citing
Merit Brief at 1-2.) This claim was overlooked by the Magistrate Judge in
both his rulings.9
9

The court of appeals concluded “that the magistrate judge’s failure to
address claims was not limited to non-Eighth Amendment claims[;]” it
directed this Court, on remand, to “ascertain precisely which [Eighth
Amendment] claims were overlooked.” (Doc. No. 99 at 433.) In its
brief, defendant states that plaintiff’s claims relating to fecal matter
smeared on cell walls, desks and beds, and the denial of appropriate
supplies to clean the same, both remain in the case following remand.
The Court disagrees, as these claims were dismissed by the April 15,
2009 order that was not appealed.

4.
Plaintiff’s Sixth and Fourteenth Amendment claim relating to
denial of access the courts, specifically, his allegation that he was denied
access to the law library and legal materials. (Doc. No. 1 at 3; Doc. No. 3
at 21.)10

10

Although plaintiff’s merit brief before the Sixth Circuit assets
allegations of denial of a notary and that his legal mail was opened out
of his presence, the Court finds no such allegations in any of the three
parts of the “complaint” and, therefore, no such claim survives the
remand.

(Doc. No. 115 at 506-09, footnotes in original.)
On March 4, 2013, defendant filed the instant motion for judgment on the
pleadings, which is now fully briefed and ready for determination.
II. DISCUSSION
A.

Applicable Law
Fed. R. Civ. P. 12(c) permits a party to move for judgment on the

pleadings “[a]fter the pleadings are closed but within such time as not to delay the
trial[.]” Plaintiff does not challenge the timeliness of defendant’s motion and the Court
determines that, given the procedural posture of the case, the motion was timely filed.
When reviewing a motion for judgment on the pleadings, the Court uses
the same standard as on a motion to dismiss for failure to state a claim under Rule
12(b)(6). Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). “[A]ll
well-pleaded material allegations of the pleadings of the opposing party must be taken as
true, and the motion may be granted only if the moving party is nevertheless clearly
entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th
Cir. 2007). However, the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.” 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) (quoting Bell Atl. Corp. v. Twombley, 550
U.S. 544, 570 (2007)).
B.

Discussion
Defendant argues that, to the extent the complaint seeks relief against him

in his individual capacity, he is entitled to qualified immunity, and, to the extent the
complaint seeks to hold him liable in his official capacity,3 it fails to state a claim under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).4
1.

Qualified Immunity
Defendant argues that he is entitled to qualified immunity in his individual

capacity.
The doctrine of qualified immunity shields government officials “from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added). Qualified immunity is
assessed with respect to “each individual’s specific conduct[.]” Reilly v. Vadlamudi, 680
F.3d 617, 624(6th Cir. 2012). “Because § 1983 liability cannot be imposed under a theory

3

The complaint does not specify whether Altiere is sued in his individual capacity, his official capacity, or
both. In Wells v. Brown, 891 F.2d 591 (6th Cir. 1989), the Sixth Circuit held that a plaintiff seeking
damages under § 1983 must clearly state in his pleadings that he is suing a state official in his individual
capacity. Id. at 592. The Sixth Circuit subsequently clarified that a failure to state explicitly the capacity in
which a defendant is sued “is not fatal if the course of proceedings otherwise indicates that the defendant
received sufficient notice [of the potential for individual liability.]” Moore v. City of Hardiman, 272 F.3d
769, 772 (6th Cir. 2001) (en banc), cert. denied, 536 U.S. 922 (2002). In his opposition to the instant
motion, Francis moves the Court, without any argument or citation to case law, to consider his claims in
both capacities. Although this request is tardy, given Francis’s pro se status the Court will allow some
leeway.
4

Defendant also argues that, should plaintiff’s claims survive these arguments, they nonetheless must
otherwise be dismissed on the merits. The Court sees no need to address any of the claims on the merits
since plaintiff does not, and cannot, connect his alleged constitutional violations to actions by Sheriff
Altiere himself.

of respondeat superior, proof of personal involvement is required for a supervisor to
incur personal liability.” Miller v. Calhoun Cnty., 408 F.3d 803, 817 n.3 (6th Cir. 2005).
Here, plaintiff has not alleged any specific conduct by defendant Altiere.
He merely asserts that “[t]he sheriff here puts my health and safety in jeopardy as he has
never complied with the law to check on inmates [sic] condition.” (Doc. No. 7 at 37.)5 He
further asserts that the “unprofessional demeanor within [the jail] . . . reflecting the
sheriff’s department, as a whole, is quite distressing to me.” (Id. at 39.)
Plaintiff fails to plead facts alleging that defendant was personally
involved in any of the actions or events underlying his claims. In his opposition brief,
plaintiff argues that Altiere has violated Ohio Rev. Code §341.04, which provides: “The
sheriff shall visit the county jail and examine the condition of each prisoner, at least once
during each month.” However, even if that were true, which defendant denies, “[s]tate
law, by itself, . . . cannot supply the foundation for a federal constitutional violation.”
Horner v. Klein, 497 F. App’x 484, 489 (6th Cir. 2012) (citing Smith v. City of Salem,
378 F.3d 566, 578 (6th Cir. 2004)).6
In addition, plaintiff argues that defendant has shown “repeated disregard
for his duty,” and has an “absolute inability to show he in any way, shape, nor form acted
in good-faith to protect the rights of the Plaintiff.” (Opposition at 602.) However, “[a]

5

The Court has previously construed three documents as constituting the full complaint: the original
Complaint (Doc. No. 1), the Statement of Claims (Doc. No. 3), and the Extended Statement of Claims
(Doc. No. 7).
6

“At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy
v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Vague allegations in the complaint that certain
“unprofessional demeanor” reflects “the sheriff’s department” do not suggest authorization or approval by
Sheriff Altiere of any unconstitutional conduct by others. Furthermore, conduct, not mere demeanor, is all
that is relevant for a section 1983 analysis.

successful § 1983 claimant must establish that the defendant acted knowingly or
intentionally to violate his or her constitutional rights, . . . such that mere negligence or
recklessness is insufficient.” Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)).
There being no redressable allegations against defendant Altiere in his
individual capacity, he is entitled to qualified immunity and to judgment on the pleadings
in his individual capacity.
2.

Lack of Monell Claims
Defendant also argues that plaintiff fails to allege any Monell claim under

which defendant might be held liable in an official capacity. “Because a suit under
section 1983 against a defendant ‘in his official capacity’ is equivalent to a suit against
the local government entity,” Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1245 (6th Cir.
1989), “before a local government can be held liable for injuries under section 1983, . . . a
plaintiff must show that his injuries were the result of some ‘policy or custom’
attributable to the governmental entity.” Id. (citing Monell, 436 U.S. at 690).
Here, there is no allegation of an official policy or custom that caused or
played a part in the alleged constitutional violations.7 Therefore, defendant is entitled to
judgment on the pleadings in his official capacity.

7

Plaintiff’s passing comment that certain “unprofessional demeanor” is reflective of the “sheriff’s
department, as a whole,” is insufficient to salvage his complaint.

III. CONCLUSION
For the reasons set forth herein, defendant’s motion for judgment on the
pleadings (Doc. No. 116) is GRANTED. All of plaintiff’s claims are dismissed with
prejudice.
The Court certifies that an appeal from this decision could not be taken in
good faith. 28 U.S.C. § 1915(a)(3).

IT IS SO ORDERED.

Dated: October 21, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE