McAllister v. Maier et al
Filing
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Order and Opinion granting the Motions for Judgment on the Pleadings with respect to defendants Jonathan Stump (Doc. # 13 ) and Dr. Jeffrey Duffey (Doc. # 12 ). The complaint is hereby DISMISSED. Judge John R. Adams on 8/6/19. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN L. MCALLISTER,
Plaintiff,
vs.
GEORGE MAIER, et al.,
Defendants.
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CASE NO. 5:18CV01423
JUDGE JOHN R. ADAMS
ORDER AND OPINION
This matter is before the Court on two motions: (1) Motion for Judgment on the
Pleadings pursuant to Fed. R. Civ. P. 12(c) on behalf of Defendant Jeffrey Duffey, M.D. (Doc. #
12) and (2) Defendant Jonathan Stump’s Motion for Judgment on the Pleadings Under Fed. R.
Civ. P. 12(c) or, in the alternative, Failure to Prosecute pursuant to Fed. R. Civ. P. 41(b). (Doc. #
13). Plaintiff has not filed responses to the motions. As the time for filing oppositions has long
expired, the motions are unopposed. For the reasons stated herein, it is hereby ORDERED that
the motions for judgment on the pleadings are GRANTED.
BACKGROUND
Plaintiff John L. McAllister filed his pro se Complaint in forma pauperis against several
defendants, including movants Jeffrey Duffey, M.D. and Jonathan Stump, in their individual and
official capacities as personnel of the Stark County Jail. Plaintiff’s Complaint alleges that
Defendants did not provide a laboratory or diagnostic test for Plaintiff’s Hepatitis C and did not
develop or implement a treatment plan for his Hepatitis C while he was incarcerated at the Stark
County Jail. These alleged failures purportedly caused Plaintiff’s cirrhosis of the liver. Plaintiff
also claims that he did not receive treatment for his degenerative disc disease. Defendants have
moved for judgment on the pleadings on these claims.
ANALYSIS
I.
LEGAL STANDARD
Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed – but early enough not
to delay trial – a party may move for judgment on the pleadings.” The standard for evaluating a
motion for judgment on the pleadings is the same as that applicable to a motion to dismiss under
Rule 12(b)(6) for failure to state a claim. Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12
(6th Cir. 2001). The Sixth Circuit stated the standard for reviewing such a motion to dismiss in
Assn. of Cleveland Fire Fighters v. Cleveland, 502 F.3d 545 (6th Cir. 2007) as follows:
The Supreme Court has recently clarified the law with respect to what a plaintiff must plead in
order to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The
Court stated that “a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. at 555 (citations and quotation marks omitted). Additionally, the
Court emphasized that even though a complaint need not contain “detailed” factual allegations,
its “[f]actual allegations must be enough to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true.” Id.
If an allegation is capable of more than one inference, this Court must construe it in the
plaintiff’s favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)
(citing Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)). This Court may not grant a
Rule 12(b)(6) motion merely because it may not believe the plaintiff’s factual allegations. Id.
While this may be a liberal standard of review, the plaintiff still must do more than merely assert
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bare legal conclusions. Id. Specifically, the complaint must contain “either direct or inferential
allegations respecting all the material elements to sustain a recovery under some viable legal
theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)
(quotations and emphasis omitted).
II.
PLAINTIFF’S CLAIMS UNDER 42 U.S.C. § 1983
Plaintiff McAllister’s claims cannot succeed under 42 U.S.C. § 1983. i Section 1983
authorizes “any citizen of the United States or other person within the jurisdiction thereof” to
pursue “an action at law [or] a suit in equity” against “every person who, under color of” state
law, causes “the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws[.]” See 42 U.S.C. § 1983. To state an actionable claim under § 1983, two elements are
necessary. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). First, a prospective plaintiff
must allege that a “defendant has deprived him of a right secured by the ‘Constitution and laws’
of the United States.” Id. Second, the plaintiff must prove that this deprivation of rights occurred
under color of law. Id. At issue in this case is Plaintiff’s claim that Defendants’ failure to provide
adequate medical care violated his right to be free from cruel and unusual punishment under the
Eighth Amendment. “The Eighth Amendment's prohibition on cruel and unusual punishment
generally provides the basis to assert a § 1983 claim of deliberate indifference to serious medical
needs . . . .” Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir. 2008) (citing City of Revere v.
Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).
The Eighth Amendment imposes duties on prison officials to provide humane conditions
of confinement, including adequate medical care. Farmer v. Brennan, 511 U.S. 825, 833 (1994).
The standard that governs § 1983 claims of Eighth Amendment violations is that of deliberate
indifference. See Id. at 834-35. “Deliberate indifference requires that the defendants ‘knew of
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and disregarded a substantial risk of serious harm to [the plaintiff's] health and safety.’” Spears v.
Ruth, 589 F.3d 249, 254 (6th Cir. 2009) (quoting Watkins v. City of Battle Creek, 273 F.3d 682,
686 (6th Cir. 2001)). The Sixth Circuit has determined that the standard of deliberate
indifference has both objective and subjective elements. Winkler v. Madison Cty., 893 F.3d 877,
890 (6th Cir. 2018) (citing Spears, 589 F.3d at 254).
“For the objective component, the detainee must demonstrate the existence of a
sufficiently serious medical need.” Spears, 589 F.3d at 254. (quoting Estate of Carter v. City of
Detroit, 408 F.3d 305, 311 (6th Cir. 2005)). A serious medical need sufficient to satisfy the
objective component is one that is “so obvious that even a layperson could recognize the need for
a doctor’s attention.” Id. (quoting Blackmore v. Kalamazoo County, 390 F.3d 890, 899-900 (6th
Cir. 2004)). Generally, some form of obviously manifested symptoms is necessary to satisfy this
requirement. See Blackmore, 390 F.3d at 900 (complaints of sharp stomach pain and vomiting
over two days were “classic signs of appendicitis.”); Bertl v. City of Westland, No. 07-2547,
2009 U.S. App. LEXIS 2086, *3 (6th Cir. Feb. 2, 2009) (“lying face down, unresponsive and
exhibiting symptoms of delirium tremens showed medical need sufficient for lay people to
recognize he needed medical attention.”).
To satisfy the subjective element, a plaintiff must show that the prison official had a
“sufficiently culpable state of mind.” Farmer, 511 U.S. 825, 834 (1994) (quoting Wilson v.
Seiter, 501 U.S. 294, 297 (1991) (internal quotations omitted)). “In prison-conditions cases that
state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (collecting cases
that establish deliberate indifference as the culpability standard in Eighth Amendment claims). In
defining the subjective component of deliberate indifference, the Supreme Court stated:
That a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
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confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference.
Farmer, 511 U.S. at 837. In that way, deliberate indifference is “greater than negligence but does
not require proof that the officials intended to cause harm. North v. Cuyahoga Cty., 754 F.
App’x. 380, 385 (6th Cir. 2018) (citing Shadrick v. Hopkins Cty., 805 F.3d 724, 737 (6th Cir.
2015)).
For the purpose of surviving a Rule 12(c) motion, a plaintiff must “allege facts which, if
true, would show that the official being sued subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and that he then
disregarded that risk.” Phillips, 534 F.3d at 540 (quoting Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001)). Where available, courts may draw inferences of the “requisite knowledge”
from circumstantial evidence. Id.
For the plaintiff’s Eighth Amendment claim to survive a Rule 12(c) motion, his pleadings
must contain direct or inferential allegations regarding all of the aforementioned material
elements of that claim.
A. Plaintiff’s § 1983 claim against Dr. Jeffrey Duffey
Dr. Duffey challenges the basis for the § 1983 claim against him in that it fails to state
“either explicitly or implicitly” that he was acting under color of law. In support of this assertion,
Dr. Duffey cites Azar v. Conley, 456 F.2d 1382, 1388 (6th Cir. 1972). However, Defendant fails
to acknowledge that the color of law requirement in this type of case is generally not an overly
burdensome requirement to satisfy. See, e.g., Shadrick, 805 F.3d at 736; Rouster v. County of
Saginaw, 749 F.3d 437, 453 (6th Cir. 2014) (Private corporations that “perform a traditional state
function such as providing medical services to prison inmates may be sued under § 1983 as one
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acting under color of state law.”) (quoting Street v. Corrections Corp. of Am., 102 F.3d 810, 814
(6th Cir. 1996) (internal quotation marks omitted)). In Azar, the Sixth Circuit agreed with the
dismissal of a § 1983 claim on the grounds of the defendant not acting under color of law
because the defendant in question was a private citizen. 456 F.2d at 1388. The same cannot be
said for Dr. Duffey. Plaintiff’s complaint alleges that Dr. Duffey is the director of the
“Correctional Healthcare Group” and Defendant admits that he “is and was Medical Director and
jail physician serving Stark County in the Stark County Jail.” (¶2, Doc. # 9) It is true that Dr.
Duffey’s name is not mentioned in Section II(D) of the plaintiff’s complaint, where he is
required to make such explanations. (Doc. # 1 at 4) Nonetheless, that failure is not dispositive.
Although not expressly stated, the contents of Plaintiff’s complaint implicitly indicate that Dr.
Duffey acted under color of law.
For Plaintiff’s claim against Dr. Duffey to survive a 12(c) motion, it must allege
sufficient facts respecting the material elements of both the objective and subjective components
of his Eighth Amendment claim. The Court first addresses the pleadings as they relate to the
objective component. Plaintiff’s allegations against Dr. Duffey are sparse to be generous.
Beyond naming Dr. Duffy as a defendant, the totality of the plaintiff’s allegations against him is
that he was aware that the plaintiff was not provided a diagnostic test for Hepatitis C or a
treatment plan and failed to have the plaintiff treated. The pleadings do not proffer any facts
which indicate that, objectively, Plaintiff had a sufficiently serious medical need. Plaintiff does
not allege that he experienced visible symptoms of Hepatitis C that would indicate to Dr. Duffey,
or to laypeople for that matter, that he had a sufficiently serious medical need that posed a
substantial risk of harm. The pleadings do not include allegations or complaints of sharp pain,
vomiting, unconsciousness, fever or the like. Nor does plaintiff allege that he, or any other
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person, expressly relayed information that would make Defendants or other staff members
objectively aware of Plaintiff’s alleged risk of serious harm. There simply are not sufficient facts
in the pleadings to permit reasonable people to find that Plaintiff objectively had a sufficiently
serious medical need.
Even if Plaintiff’s complaint could be construed so generously as to properly allege the
objective component of his claim, it cannot satisfy the subjective component. Put kindly,
Plaintiff’s allegations offer few, if any facts that could be construed as indicating that Dr. Duffey
was subjectively aware of any substantial risk to the plaintiff. Again, Plaintiff’s allegations do
not contain any information with respect to how Dr. Duffey could be subjectively aware of his
ailments. Plaintiff does not purport that he complained of symptoms to staff members that might
inform Dr. Duffey, or to Dr. Duffey directly. Nor does Plaintiff allege that he submitted any type
of medical request form in regard to his ailments. Finally, there is no circumstantial evidence or
facts provided that might allow the Court to draw an inference of deliberate indifference.
Plaintiff’s pleadings may well purport to allege negligence, but they do not support an inference
that Dr. Duffey disregarded a known or obvious risk of serious harm. Accordingly, Dr. Duffy’s
Rule 12(c) Motion for Judgement on the Pleadings is granted.
B. Plaintiff’s § 1983 claim against Jonathan Stump
Plaintiff’s allegations against Jonathan Stump are as follows: that he knew that the
plaintiff had not been tested for Hepatitis C, that he knew that no treatment plan had been
developed, and that with this knowledge he failed to have the plaintiff treated. Plaintiff uses
these same assertions to allege the manner in which Mr. Stump acted under color of law pursuant
to § 1983. Mr. Stump denies the allegations that any action he committed pertaining to this
matter occurred under color of law. (II, Doc. # 6) Although, the pleadings do not directly address
how Mr. Stump acted under color of law, they do allege that Mr. Stump was the CEO of
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Correctional Health Care Group, which, as Defendant admits, provides healthcare services to the
Stark County Jail. For the purpose of disposing of this motion, the Court will assume that,
construed favorably as is required, Plaintiff’s pleadings implicitly indicate that Mr. Stump’s
actions in relation to these claims occurred under color of law.
Plaintiff must still allege sufficient facts respecting the material elements of his Eighth
Amendment claim against Mr. Stump. As noted above, Plaintiff’s pleadings fail to disclose any
facts in support of his claim. The pleadings simply do not indicate even a bare minimum factual
basis from which reasonable people could objectively recognize that he has a sufficiently serious
medical need.
Again, even if the objective component were met, the pleadings still fail to allege
sufficient facts with respect to the subjective component to survive a Rule 12(c) motion. The
pleadings do not indicate any underlying facts from which Mr. Stump could draw inferences as
to the plaintiff’s risk of serious harm. They do not allege in what manner Mr. Stump became
subjectively aware of Plaintiff’s purported ailments, or if he became aware at all. The pleadings
do not even allege or make clear any basis for inferring that Mr. Stump knew anything about
Plaintiff.
Plaintiff’s pleadings are more akin to an assertation of bare legal conclusions than they
are to any cognizable claim of an Eighth Amendment violation under § 1983. Accordingly, Mr.
Stump’s Rule 12(c) Motion for Judgment on the Pleadings is granted.
III. DEFENDANT’S ARGUMENT FOR DISMISSAL FOR FAILURE TO PROSECUTE
Additionally, one defendant has brought to the Court’s attention that attempts to
communicate with the plaintiff on matters of importance to this litigation have not been
successful. Specifically, documents addressed to plaintiff’s address at 4024 Cleveland Ave NW,
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Apt. 6, Canton, Ohio 44709-2356 were returned as “not deliverable.” (Doc. # 13). The first
document was an answer to the plaintiff’s complaint; the second was in regard to discovery
planning pursuant to Fed. R. Civ. P. 26(f). To date, the plaintiff has not provided the court with
an updated address or any other means of communication.
Fed. R. Civ. P. 41(b) states that “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order” a court may dismiss the action. Dismissal “is a harsh sanction which
the court should order only in extreme situations showing a clear record of delay or
contumacious conduct by the plaintiff.” Carver v. Bunch, 946 F.2d 451, 454 (6th Cir. 1991)
(quoting Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980) (internal quotation marks
omitted)).
In determining whether a dismissal pursuant to Rule 41(b) is appropriate, a court should
consider:
(1) whether the party's failure is due to willfulness, bad faith, or
fault; (2) whether the adversary was prejudiced by the dismissed
party's conduct; (3) whether the dismissed party was warned that
failure to cooperate could lead to dismissal; and (4) whether less
drastic sanctions were imposed or considered before dismissal was
ordered.
Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll
v. AT&T, 176 F.3d 359, 363 (6th Cir. 1999)). Generally, no single factor is outcome
determinative. Knoll, 176 F.3d at 363 (citing Carter v, 636 F.2d at 161). That Plaintiff in
this case has proceeded pro se does not alter the analysis. See Nationwide Life Ins. Co. v.
Penn-Mont Ben. Servs., 2018 U.S. App. LEXIS 2483, at *16 (6th Cir. Jan. 31, 2018)
(affirming Rule 41(b) dismissal of pro se litigant claims in part because he “never
provided the court or updated the docket with a valid mailing address . . . .”). These
factors support a conclusion that Plaintiff has failed to prosecute his claim.
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For the first factor to support dismissal, Plaintiff’s conduct “must display either an
intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct
on those proceedings.” Tung-Hsiung Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005) (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001)).
Although pro se litigants are afforded some leeway when dealing with complex legal
issues, such leeway is not extended to “straightforward procedural issues.” Jourdan v.
Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Additionally, pro se litigants have an affirmative
duty to update the court with changes in address. See Barber v. Runyon, 1994 U.S. App.
LEXIS 9709, at *3 (6th Cir. May 2, 1994). Here, the record indicates that Plaintiff has
not properly kept the Court or opposing parties apprised of any changes in address, nor
has he provided any other form of contact information. Plaintiff’s failure to do such an
important, yet basic, task indicates a reckless disregard for the proceedings that he
initiated. Accordingly, the first factor weighs in favor of dismissal.
Additionally, Defendants in this case have been prejudiced by Plaintiff’s conduct,
or lack thereof, because they have expended considerable time, effort, and resources in
answering Plaintiff’s initial complaint and in proceeding through the discovery and
motion phase of the litigation. See Schafer, 529 F.3d at 737 (“[A] defendant is prejudiced
by the plaintiff's conduct where the defendant ‘waste[d] time, money, and effort in
pursuit of cooperation which [the plaintiff] was legally obligated to provide.’” (quoting
Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)). The second factor
unambiguously supports dismissal.
The third and fourth factors require the court to make more difficult
determinations, given the nature of Plaintiff’s conduct. The Court acknowledges that it
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has given Plaintiff no warnings of a potential dismissal pursuant to Rule 41(b). Nor has it
issued any orders requiring Plaintiff to show cause for his neglectful conduct. Ordinarily
this factor would weigh in favor of the plaintiff, but in this case the Court has its doubts.
From the outset of this suit, court records indicate that important documents and orders
related to this matter, addressed to Plaintiff’s single proffered address, have been returned
due to insufficient address. See Doc. # 8. Additionally, attempts by Defendants to
communicate with Plaintiff on issues of importance to this matter, such as discovery,
have suffered the same fate. See Doc. # 13. Plaintiff also failed to respond to Defendants’
motions to dismiss and, to wit, has made no further efforts to contact the Court or other
parties regarding the matter, despite the Court allowing ample time between the filing and
disposition of the motions. Any such order that the Court could issue that might warn
Plaintiff of a pending dismissal is likely to amount to no more than shouting into the
wind.
With regard to the fourth factor, no other sanctions against Plaintiff have been
issued thus far. However, when analyzing the fourth factor, a sizeable difficulty exists in
determining whether or not a dismissal without prior sanctions is deserving of preclusive
effects. See Harmon, 110 F.3d at 368 (finding that the “imposition of lesser sanctions is a
factor in our review, not a sine qua non for affirmance” and that “this factor . . .
require[s] particular caution “in the absence of contumacious conduct.” (citation and
internal quotation marks omitted)). Plaintiff’s conduct in this matter rises at least to the
level of contumacious, and therefore the lack of sanctions prior to dismissal is not
dispositive of this motion to dismiss. That being said, because the Court is not dismissing
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the matter pursuant to Rule 41(b), it withholds judgment on preclusive effects as they
would relate to such a dismissal.
The first and second factor conclusively support a dismissal of Plaintiff’s claim
for failure to prosecute. The third and fourth factors offer resistance, but given the
specific nature of this matter, that resistance is not dispositive. For these reasons,
alternate grounds for dismissal for failure to prosecute pursuant to rule 41(b) are available
to this Court.
CONCLUSION
For the reasons stated above, this Court GRANTS the Motions for Judgment on the
Pleadings with respect to defendants Jonathan Stump and Dr. Jeffrey Duffey. The complaint is
hereby DISMISSED.
IT IS SO ORDERED.
DATED: 8/6/19
/s/ John R. Adams_________________
John R. Adams
UNITED STATES DISTRICT JUDGE
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The remaining defendants in this case have extensively briefed the Court on the requirement of affidavits of merit
for medical malpractice claims under Ohio law. Both defendants fail to acknowledge, in large part, Plaintiff’s Eighth
Amendment claim under 42 U.S.C. § 1983. Given that the Eighth Amendment allegations are Plaintiff’s sole basis
for subject matter jurisdiction in this matter and the crux of Plaintiff’s claim, this Court declines to consider any
issues in the alternative concerning medical malpractice.
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