Troche v. Morgan
REPORT AND RECOMMENDATION that defendant Morgan's 24 MOTION TO DISMISS be Granted and that plaintiff's Sec. 1983 claims against defendant Morgan be Dismissed with prejudice and that his state law claims against defendant Morgan be Dismissed without prejudice. Objections to R&R due by 9/9/2013. Signed by Magistrate Judge Karen L. Litkovitz on 8/21/2013. (art)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
SHANNON EARL TROCHE,
Case No. 1:12-cv-176
Plaintiff, an inmate at the Ohio State Penitentiary, brings this prisoner civil rights action
under 42 U.S.C. § 1983 alleging violations of his constitutional rights by defendants Correctional
Officer Michael Crabtree and Warden Donald Morgan while plaintiff was an inmate at the
Southern Ohio Correctional Facility (SOCF). (Doc. 23). 1 Plaintiff also raises Ohio state law tort
claims against the defendants. This matter is before the Court on defendant Morgan's motion to
dismiss (Doc. 24), plaintiffs memorandum in opposition (Doc. 28), and Morgan's reply. (Doc.
29). Defendant Morgan moves to dismiss plaintiffs complaint under Fed. R. Civ. P. 12(b)(6),
asserting that plaintiff has failed to state a claim against him for which relief can be granted.
Defendant Morgan further asserts he is immune from liability for plaintiffs state law claims.
For the following reasons, the undersigned recommends that defendant Morgan's motion to
dismiss be GRANTED.
I. Standard of Law
Rule 12(b)( 6) authorizes dismissal of a complaint for "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and must
draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236,
Plaintiff initiated this action on a pro se basis but is currently represented by counsel pursuant to the
District Court's appointment of an attorney. See Doc. 14.
(1974). See also Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atlantic Corp. v. Twombly,
550 u.s. 544, 555-56 (2007).
A complaint must contain a "short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a). To avoid dismissal for failure to state a claim
for relief, plaintiffs complaint "must contain sufficient factual matter, accepted as true, to 'state
a claim to reliefthat is plausible on its face."' Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570). "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." !d. (citing Twombly, 550 U.S. at 556). While the Court must accept
all well-pleaded factual allegations as true, it need not "accept as true a legal conclusion couched
as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). The complaint need not contain "detailed factual allegations," yet must provide
"more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at
1949 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of"further factual
enhancement." !d. at 557.
Although plaintiff need not plead specific facts, his statement must "give the defendant
fair notice of what the ... claim is and the grounds upon which it rests." Erickson, 551 U.S. at
93 (citations omitted). Plaintiffs factual allegations must be enough to raise the claimed right to
relief above the speculative level and to create a reasonable expectation that discovery will reveal
evidence to support the claim. Twombly, 550 U.S. at 556. This inquiry as to plausibility is "a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.. . . [W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n] '-'that the
pleader is entitled to relief."' Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). Finally,
the Court must "scrutinize with special care" a motion to dismiss a complaint filed under a civil
rights statute." See Perry v. McGinnis, 209 F.3d 597, 603 (6th Cir. 2000) (citing Brooks v.
Seiter, 779 F.2d 1177, 1180 (6th Cir. 1985)). With these principles in mind, the Court reviews
II. Factual Allegations
On or around August 20, 2011, plaintiff was ordered to clean brooms located in the "pan
room" near the dining hall by SOCF Correctional Officer Michael Crabtree (defendant Crabtree).
(Doc. 23, ~ 11 ). Plaintiff asked defendant Crabtree where the inmates who usually clean brooms
were and defendant Crabtree told plaintiff to "[d]o what the fuck I told you to do."
Plaintiff requested that defendant Crabtree not speak to him in that manner but proceeded to
enter the pan room and clean brooms.
13). Defendant Crabtree followed plaintiff into the
pan room and then physically assaulted plaintiff without provocation.
SOCF employees intervened and separated defendant Crabtree and plaintiff following plaintiffs
unsuccessful attempt to push defendant Crabtree away.
16, 19). As a result of this
assault, plaintiff suffered a laceration on the back of his head and bruising on his back and neck.
20). Following this incident, plaintiff was placed in isolation for approximately two
weeks during which time he was mistreated by SOCF staff and deprived of food. (!d.,
Plaintiff was charged with and tried for criminal assault in the Scioto County Court of Common
Pleas in connection with this incident.
26). Plaintiffwas acquitted ofthe charge by a jury.
Plaintiff alleges that defendants Crabtree and Morgan violated his constitutionally
protected Eighth Amendment rights to be free from the use of excessive force and cruel and
unusual punishment. (!d., ,-r,-r 28, 29). Plaintiff further alleges defendants Crabtree and Morgan
violated his Fourteenth Amendment constitutional right to due process by placing him in
isolation and depriving him of food. (!d., ,-r,-r 32-34). Lastly, plaintiff alleges defendants Crabtree
and Morgan are liable for punitive damages under his Ohio state law assault and battery claim.
(!d., ,-r,-r 38-41).
Defendant Morgan seeks dismissal of plaintiffs claims against him on two grounds:
(1) plaintiffs complaint includes no factual allegations that defendant Morgan was involved in
any of the events related to his constitutional claims and, consequently, he cannot be held
individually liable for any alleged constitutional violation; and (2) defendant Morgan, as an
employee of the state of Ohio, is immune from liability for plaintiffs state law assault and
battery claim. (Doc. 24 at 2).
In response, plaintiff argues that under the Twombly/ Iqbal pleading standard, his § 1983
claims survive defendant Morgan's Rule 12(b)(6) challenge because his amended complaint
contains sufficient facts from which the Court can "draw a reasonable inference" that defendant
Morgan's conduct meets the elements of the claims. (Doc. 28 at 1). Plaintiff also asserts that
defendant Morgan was necessarily involved in the decision to place plaintiff in isolation and,
thus, the constitutional deprivation by virtue of defendant Morgan's duties under the Ohio
Administrative Code. !d. at 4. In support, plaintiff cites to Ohio Admin. Code § 5120:1-8-12,
which he contends imposes a duty on defendant Morgan to approve of any prisoner discipline,
such as plaintiffs isolation. !d. Plaintiff also requests that the Court stay its ruling on defendant
Morgan's motion to dismiss the state law tort claims pending a ruling from the Ohio Court of
Claims on the issue of defendant Morgan's immunity. Id. at 6.
Defendant Morgan replies that plaintiffs contention that the Court may reasonably infer
his liability is erroneous and that without facts describing defendant Morgan's direct
involvement, plaintiff has failed to state a plausible claim for relief under Twombly!Iqbal.
Defendant Morgan also notes that the Ohio Administrative Code relied on by plaintiff applies to
full service jails and not to correctional facilities like SOCF. Further, defendant Morgan
maintains that plaintiffs state law claims against him should be dismissed without prejudice
because he is immune from liability pending a determination from the Ohio Court of Claims to
the contrary. (Doc. 29).
For the following reasons, defendant Morgan's motion is well-taken.
The 42 U.S.C. § 1983 Claims
A government official can be sued under § 1983 in either his individual or official
capacity. 2 An individual capacity suit under§ 1983 seeks to impose personal liability on a state
official for actions taken under color of state law. Hafer v. Melo, 502 U.S. 21, 25 (1991). An
official cannot be held liable in his individual capacity under § 1983 based on a theory of
respondeat superior. Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010) (citing Leach v.
Shelby County Sheriff, 891 F .2d 1241, 1246 (6th Cir. 1989)). Instead, officials are personally
liable for damages under § 1983 only for their own unconstitutional behavior. Id. Yet, where a
supervisor authorizes, approves or knowingly acquiesces in the unconstitutional conduct of his
subordinates, liability may be imposed against the supervisor. Turner v. City ofTaylor, 412 F.3d
629,643 (6th Cir. 2005) (quoting Bellamy v. Bradley, 729 F.2d 416,421 (6th Cir. 1984)). Thus,
Plaintiff has withdrawn his official capacity claims against all defendants; the remaining claims are raised
against defendants in their individual capacities. See Doc. 20 at 1.
a plaintiffs§ 1983 claim against a defendant Morgan in his individual capacity must fail "unless
[defendant Morgan] encouraged the specific incident of misconduct or in some other way
directly participated in it." !d. (citing Cardinal v. Metrish, 564 F.3d 794, 802-03 (6th Cir.
Plaintiffs amended complaint includes substantial factual allegations regarding the
conduct of Correctional Officer Crabtree, but there are no such allegations against defendant
Morgan. Indeed, defendant Morgan is mentioned only twice in the entirety of plaintiffs
amended complaint as follows:
In committing the acts complained of herein, [d]efendants Crabtree and Morgan
acted under color of state law to deprive [p]laintiff of his constitutionally
protected right [to be free] from excessive use of force, as secured by the Eighth
Amendment to the Constitution of the United States of America, in violation of 42
U.S.C. § 1983.
In committing the acts complained of herein, [d]efendants Crabtree and Morgan
acted under color of state law to deny [p]laintiff of his constitutionally protected
(Doc. 23, ,-r,-r 28, 32). These allegations are nothing more than formulaic legal conclusions; to
state a cognizable § 1983 claim, plaintiff is required to provide "factual enhancement" describing
defendant Morgan's personal involvement in the alleged constitutional violation. Iqbal, 556
U.S. at 678; Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010) (plaintiff must plead direct
personal involvement to establish § 1983 liability). Plaintiffs amended complaint includes no
such allegations. Consequently, plaintiff has failed to state a plausible§ 1983 claim against
Despite the lack of any allegations of defendant Morgan's direct involvement in the
alleged unconstitutional treatment, plaintiff argues that the Court can nevertheless infer liability
as Ohio law requires defendant Morgan, as Warden of SOCF, to approve of any penalty,
including disciplinary isolation, lasting longer than 128 hours. (Doc. 28 at 4-5). Plaintiff claims
that because he has alleged that he was placed in isolation and denied food for approximately
two weeks, it is reasonable to infer defendant Morgan's direct involvement. As noted by
defendant Morgan, plaintiffs argument is misplaced.
The code plaintiff relies on in making this argument is Ohio Administrative Code§ 5120:
1-8-12, which provides that a "jail administrator or designee shall approve any penalty exceeding
suspension of rights or disciplinary isolation for more than one hundred twenty hours." Ohio
Admin. Code§ 5120: 1-8-12. Yet, this provision ofthe Ohio Administrative Code governs the
procedures for a "full service jail," which is defined as "[a] local confinement facility used
primarily to detain adults for more than two hundred eighty-eight hours." Ohio Admin. Code§
5120: 1-7-02. (emphasis added). 3 SOCF is not a "full service jail"; it is a correctional facility
under the authority of the Ohio Department of Rehabilitation and Corrections, and the placement
of prison inmates in disciplinary segregation is the responsibility of the deputy warden, not
warden. See Ohio Admin. Code§ 5120-9-11(B). The provision cited by plaintiff is therefore
inapplicable to the instant matter. Moreover, even if defendant Morgan was obliged to approve
plaintiff's placement in segregation, it is still incumbent upon plaintiff to allege facts establishing
defendant Morgan's direct involvement in or approval of the alleged mistreatment of plaintiff
while in segregation in order to state a cognizable§ 1983 claim. See Bennett v. Smith, 110 F.
App'x 633, 635 (6th Cir. 2004) (dismissing inmate's Eighth Amendment claim against warden
and deputy warden for prison staff's taunts and limited showers to inmate while in segregation
where no allegations that named defendants participated in mistreatment or knowingly permitted
Ohio Admin. Code§§ 5120:1-8-01 to 5120:1-12-19 govern the "Minimum Standards for Jails in Ohio,"
which include county jails, municipal jails, regional jails, and work houses. Ohio Admin. Code § 5120: 1-7-02(A).
it). As plaintiffs amended complaint contains no such allegations, defendant Morgan's motion
to dismiss plaintiffs federal law claims should be granted.
The State Law Claim
Pursuant to Ohio law, state employees are immune from state law claims, such as
plaintiffs assault and battery claims, until the Ohio Court of Claims determines otherwise. Ohio
Rev. Code§ 2743.02. See also Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989). Further,
until such a determination, "there is no cause of action cognizable under Ohio law over which
the district court can assert pendent jurisdiction." Haynes, 887 F.2d at 705. Thus, unless the
Ohio Court of Claims determines that defendant Morgan was acting outside the scope of his
employment and is not immune from suit, this Court lacks jurisdiction over plaintiffs state law
Plaintiff requests that the Court stay his state law claim as he purports to have initiated an
action in the Ohio Court of Claims regarding defendant Morgan's immunity. The undersigned
finds that in the interest of judicial economy, a dismissal without prejudice is the better course.
Dismissing plaintiffs state law claims against defendant Morgan with leave to reinstate them
will allow for a more focused discovery process. Further, such a dismissal will not prejudice
plaintiff as he may re-assert his state law claims upon a determination by the Ohio Court of
Claims that defendant Morgan is not entitled to immunity from suit. See Gravely v. Madden,
964 F. Supp. 260, 262-63 (S.D. Ohio 1995) (citing cases). Accordingly, the undersigned
recommends that plaintiffs state law claims against defendant Morgan be dismissed without
For the above reasons, the undersigned recommends that defendant Morgan's motion to
dismiss (Doc. 24) be GRANTED and that plaintiffs §1983 claims against defendant Morgan be
DISMISSED with prejudice and that his state law claims against defendant Morgan be
DISMISSED without prejudice.
Karen L. Litkovitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:12-cv-176
SHANNON EARL TROCHE,
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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