Troche v. Morgan

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 31 Report and Recommendation, granting 24 Defendant Donald Morgan's Motion to Dismiss. The federal constitutional claims alleged against Defendant Morgan pursuant to 42 U.S.C. § 1983 are DI SMISSED WITH PREJUDICE and the state tort claim of assault and battery is DISMISSED WITHOUT PREJUDICE. Plaintiff Troche's claims against Defendant Crabtree are not the subject of the Magistrate Judge's Report and Recommendation, and thus they remain. Signed by Judge S Arthur Spiegel on 3/4/2014. (km1)

Download PDF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION SHANNON EARL TROCHE, : : : : : : : : : Plaintiff, v. DONALD MORGAN, et al., Defendants. This matter is before NO. 1:12-cv-00176 ORDER the Court on the Report and Recommendation of Magistrate Judge Karen L. Litkovitz (doc. 31), to which Defendant reasons Plaintiff Donald that has filed Morgan follow, has we an objection responded ACCEPT the (doc. (doc. 37) and 39). For the of the recommendation Magistrate Judge. Plaintiff brings this prisoner civil rights action pursuant to 42 U.S.C. § 1983 against Warden Correctional Officer Michael Crabtree. Donald Morgan and Plaintiff currently is an inmate at the Ohio State Penitentiary, but the constitutional violations he alleges, as well as those sounding in Ohio common law, occurred while he was an Correctional Facility (“SOCF”). inmate at the Southern Ohio Defendant Morgan filed a motion to dismiss Plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12(b)(6) (doc. 24), recommends we grant. 1 which the Magistrate Judge In August 2011, Defendant Crabtree ordered Plaintiff to clean the brooms located in the “pan room” near the SOCF dining hall (First Amended Complaint, doc. 23 ¶ 11). Plaintiff questioned where the inmates were who usually performed that task, and was told by Crabtree to “[d]o what the fuck I told you to do[]” (id. ¶ 12). Plaintiff asked Crabtree to not talk to him “that way” and headed to the pan room as instructed (id. ¶ 13). Crabtree followed Plaintiff into the pan room where he began to beat and choke him (id. ¶¶ 14, 15, 18). Plaintiff did not provoke this physical assault and made efforts to stop it, but without success (id. ¶¶ 15, 16). Other SOCF employees eventually separated them, with Plaintiff suffering a gash to his head and bruising around his neck (id. ¶¶ 19, 20). After being treated for his injury, Plaintiff was placed in isolation, known as the “slammer cell,” for approximately two weeks; during that time he was mistreated by SOCF staff, including being deprived of food (id. ¶¶ 22, 23).1 Plaintiff constituted charges excessive that use of Crabtree’s force and unprovoked the denial assault of food subsequent to the excessive use of force amounted to a cruel and unusual punishment, both in violation of his Eighth Amendment 1 In connection with the incident, Plaintiff was tried for criminal assault in the Scioto County Court of Common Pleas in April 2012; a jury acquitted him (doc. 23, First Amended Complaint ¶ 26). 2 rights (id. ¶¶ 28, 29). Plaintiff also charges that his placement in isolation after Crabtree’s unprovoked assault and the deprivation of food he experienced there was in violation of his right to due process guaranteed by the Fourteenth Amendment (id. ¶¶ 33-35). Finally, Plaintiff charges that Crabtree’s attack amounts to an assault and battery under state tort law (id. ¶ 38). In his motion, Defendant Morgan argued that the federal constitutional claims against him should be dismissed because there is no allegation that he was personally involved in any of these events as is required under Section 1983 jurisprudence; as to the state tort claim, he maintains he is immune from liability until the Ohio Court of Claims determines otherwise. Plaintiff countered standard, his challenge because that, federal under claims there are the should Twombly/Iqbal survive sufficient facts a pleading Rule from 12(b)(6) which the Court can “draw a reasonable inference” that Defendant Morgan “fail[ed] to prevent harm” as was his duty as Warden (doc. 28 at 1, 3) and because the Ohio Administrative Code obligated him, again as Warden, to approve Plaintiff’s placement in isolation (id. at 4). Plaintiff conceded that Defendant Morgan enjoys a presumption of immunity as to his state tort claim, though, but requested a stay (in lieu of a dismissal) until the prerequisite adjudication in the Ohio Court of Claims concludes (id. at 6-7). 3 The Magistrate 1983 behavior.’” found Defendant Morgan’s arguments A state actor sued in his individual capacity2 under well-taken. Section Judge is liable only for his “‘own unconstitutional Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010) (quoting Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989)). The theory of respondeat superior does not apply. Id. (citing Leach, 891 F.3d at 1246). liable for the acts of his A supervisor may be subordinate, however, if he “‘implicitly authorized, approved or knowingly acquiesced in’” the unlawful conduct. Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). But “[t]here must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it.” Id. (quoting Bellamy, 729 F.2d at 421). Applying this standard, the Magistrate Judge observed that Plaintiff’s allegations First with Amended regard to Complaint includes Defendant Crabtree, many but factual only two brief references to Defendant Morgan which amount to nothing more than “formulaic legal conclusions[]” (doc. 31 at 6). 2 She Defendants Morgan and Crabtree were sued originally in both their official and individual capacities. However, once courtappointed counsel for Plaintiff realized that his client had instituted a cause of action based on these facts against the State of Ohio in its Court of Claims, he withdrew all official capacity claims in this matter (see doc. 20 at 1 n.1). 4 rejected Plaintiff’s argument that the Court could “infer” an allegation of direct involvement on the premise that state law would have required him as Warden, the putative “jail administrator,”3 to approve of any penalty—including disciplinary isolation—lasting longer than 128 hours. 5120: 1-8-12. operation That of a chapter “full of service the Ohio Admin. Code § Code jail,” pertains defined as to a the “local confinement facility used primarily to detain adults for more than two hundred (emphasis added). eighty-eight by Corrections, Id. § 5120: 1-7-02 As its name implies, however, the SOCF is not a “full service jail.”4 maintained hours.” the where Rather, it is a facility authorized and Ohio the Department placement of of a Rehabilitation prison and “inmate” in isolation, or “security control,” is committed to the approval of the Deputy Warden, not the Warden. even if it isolation, were the Plaintiff Warden’s still role must Id. § 5120-9-11(B). to allege approve (but And placement has not) in that Defendant Morgan was involved directly in, or at least approved of, the alleged segregated. mistreatment that occurred while he was In support, the Magistrate Judge cited Bennett v. 3 An “administrator” is defined as a “[p]erson[] who ha[s] managerial responsibility for a full service jail.” Ohio Admin. Code § 5120: 1-7-02(B)(1). Obviously, this definition contains no reference to a “warden” or a “deputy warden.” 4 Falling within the ambit of “full service jails” are county jails, municipal jails, regional jails and workhouses. Ohio Admin. Code § 5120: 1-7-02(A). 5 Smith, a case in which the Sixth Circuit dismissed a prisoner’s Eighth Amendment claim of cruel and unusual punishment against both the Warden and two Deputy Wardens. (6th Cir. 2004). 110 F. App’x 633, 635 Inmate Bennett alleged that he was taunted by prison staff while in segregation and only permitted to shower four times over sixty-eight days; but because he did not allege that the named defendants participated in the mistreatment or knowingly permitted it to occur, he failed to state a Section 1983 claim against them. Id. The Magistrate Judge’s report regarding Plaintiff’s state law claim was even more straightforward. It is well-established that state employees are immune from civil actions grounded in state law.5 Whether a state employee loses his or her immunity is a decision committed to the Ohio Court of Claims.6 Thus, in the absence of a ruling by the Court of Claims that strips Defendant Morgan of his immunity, 5 this Court is without Immunity is lost “[only if] the . . . employee's actions were manifestly outside the scope of his [or her] employment or official responsibilities, or [only if] the . . . employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. . . .” O.R.C. § 9.86. 6 The Ohio Court of Claims “has exclusive, original jurisdiction to determine, initially, whether the . . . employee is entitled to personal immunity under section 9.86 of the Revised Code . . . .” O.R.C. § 2743.02(F); Johns v. Univ. of Cincinnati Med. Assocs., 101 Ohio St. 3d 234, 2004-Ohio-824, 804 N.E.2d 19, at ¶ 30 (“Therefore, we hold that under R.C. 2743.02(F), the Court of Claims is the only court with authority to determine whether a state employee is immune from personal liability under R.C. 9.86.”) (emphasis added). 6 jurisdiction over Plaintiff’s state law claim. See Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989) (district court may not assume pendent [now “supplemental”] jurisdiction over state law claims until Ohio Court of Claims resolves immunity issue). In the interests of judicial economy, the Magistrate Judge recommends a dismissal without prejudice of this claim rather than a stay as Plaintiff requests. Plaintiff timely objected to the Magistrate Judge’s Report and Recommendation. Assuming Section 5120-9-11(B) (rather than Section 5120: 1-8-12) governs the SOCF, he urges that Defendant Morgan’s direct involvement still can be inferred because that provision requires the Deputy Warden to “forward a copy of [the written summary regarding the proposed treatment of an inmate] to the [W]arden.” Ohio Admin. Code § 5120-9-11(B). Thus, the Warden has “the ultimate authority to approve or reject the recommended handling “Defendant Morgan and had treatment of Plaintiff (emphasis original)). treatment to have Troche per Plaintiff of inmates” direct Ohio cites and therefore involvement law” (doc. McConnell in 37 v. the at 3 Butler Cnty., Ohio, No. 1:13-cv-210, 2013 WL 4482411, at *3-4 (S.D. Ohio Aug. 19, 2013) for the proposition that a Rule 12(b)(6) motion is properly denied when a prison staff member’s involvement in mistreatment of an inmate can be inferred from his job responsibilities (doc. 37 at 3). 7 He maintains that discovery is necessary “to explore Defendant Morgan’s role in his mistreatment Magistrate at Judge’s SOCF[,]” and recommendation urges with constitutional claims (id. at 4). us to regard to reject his the federal Plaintiff does not object, however, to the Magistrate Judge’s recommendation concerning his state tort law claim. Defendant misplaced. Morgan contends that reliance on McConnell is That case concerns a deliberate indifference (to a serious medical need) claim under the Eighth Amendment in which a plaintiff administratrix alleges, among other things, that the Sheriff and Medical Director had individual responsibilities to promulgate procedures and medical policies at the Butler County Jail to keep inmates experiencing opiate withdrawal safe from harm and failed to do so. Magistrate Judge Bowman has recommended to our colleague, the Honorable Herman J. Weber, that the motions to dismiss by the individual defendants be denied in large part on the authority of Taylor v. Mich. Dep’t of Corrections, 69 F.3d 76 (6th Cir. 1995). district court’s grant of summary Taylor reversed the judgment in favor of the Warden because “a triable question exist[ed] about whether [he] properly discharged his duty.” Warden protect was responsible vulnerable “‘to Id. at 81. implement inmates from By regulation, the procedures dangerous that would transfers.’” McConnell, 2013 WL 4482411, at *3 (quoting Taylor, 69 F.3d at 8 80). He permissibly delegated this task, but he became “‘aware of and at least acquiesced in the conduct of his subordinates in approving transfers without adequately reviewing the inmate's record.’” McConnell, 2013 WL 4482411, at *3 (quoting Taylor, 69 F.3d at 81). Because the Warden failed to correct what he arguably knew was a “defective” transfer procedure, he could be held personally (as opposed to vicariously) responsible for the rape of an inmate who was improperly transferred between facilities. McConnell, 2013 WL 4482411, at *3 (citing Taylor, 69 F.3d at 81). Defendant Morgan points out that Plaintiff Troche has not alleged a “policies and procedures” claim, and repeats that he has not alleged any facts that link Defendant directly with, or somehow approving of, the alleged mistreatment to which Plaintiff was subject while in isolation. As required by 29 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), this Court reviewed de novo that portion of the Magistrate Judge’s Report and Recommendation to which Plaintiff has objected and the filings related thereto. Upon careful unpersuasive. us, the consideration, we find Plaintiff’s objection Given the facts pled and the precedent that binds Court thinks it improper to “infer” involvement on the part of Defendant Morgan. 11(B) reads in full as follows : 9 any direct Section 5120-9- The deputy warden of operations, or designee, must approve the placement of an inmate in security control. This approval shall be written, and shall summarize the reasons for placement in security control. The deputy warden shall forward a copy of this approval to the warden. Ohio Admin. Code § 5120-9-11(B) (emphasis added). The Deputy Warden does not, as Plaintiff suggests, send a written proposal of discipline he is recommending, but, rather, he forwards a written explanation of what discipline he already has approved (see doc. 37 at 3). The text of this regulation serves to reinforce the notion that the only theory of liability upon which Plaintiff proceeds is that of respondeat superior, clearly impermissible under Section 1983. See Hayerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). Moreover, even if the Warden had sanctioned Plaintiff’s placement in segregation, there simply are no allegations, even ones from which inferences can be drawn, that connect him Plaintiff experienced when there. to the alleged mistreatment Again, that he serves as the prison’s ultimate authority does not render him liable for the acts of subordinates like Defendant Crabtree, against whom Plaintiff most certainly has alleged facts sufficient to state a claim upon which relief can be granted. Finally, neither established policies or procedures—nor the lack thereof—are at issue here, rendering a Taylor analysis inapposite. In conclusion, Recommendation of the Magistrate Court Karen 10 finds L. the Litkovitz Report to be and well- reasoned, thorough and correct and thus we ACCEPT, ADOPT and AFFIRM it. Plaintiff’s objection thereto is hereby OVERRULED, and the Motion to Dismiss filed by Defendant Donald Morgan, Warden at the Southern Ohio Correctional Facility, is hereby GRANTED. The federal constitutional claims alleged against Defendant Morgan pursuant to 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE and the state tort claim of assault and battery is DISMISSED WITHOUT PREJUDICE. Plaintiff Troche’s claims against Defendant Crabtree are not the subject of the Magistrate Judge’s Report and Recommendation, and thus they remain. SO ORDERED. Dated: March 4, 2014 s/S. Arthur Spiegel________________ S. Arthur Spiegel United States Senior District Judge 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?