Troche v. Morgan
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
SHANNON EARL TROCHE,
DONALD MORGAN, et al.,
Recommendation of Magistrate Judge Karen L. Litkovitz (doc. 31),
Plaintiff brings this prisoner civil rights action pursuant
Correctional Officer Michael Crabtree.
Plaintiff currently is
an inmate at the Ohio State Penitentiary, but the constitutional
violations he alleges, as well as those sounding in Ohio common
Correctional Facility (“SOCF”).
Defendant Morgan filed a motion
to dismiss Plaintiff’s First Amended Complaint under Fed. R.
recommends we grant.
clean the brooms located in the “pan room” near the SOCF dining
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. ¶
Crabtree followed Plaintiff into the pan room where he
began to beat and choke him (id. ¶¶ 14, 15, 18).
not provoke this physical assault and made efforts to stop it,
eventually separated them, with Plaintiff suffering a gash to
his head and bruising around his neck (id. ¶¶ 19, 20).
being treated for his injury, Plaintiff was placed in isolation,
known as the “slammer cell,” for approximately two weeks; during
deprived of food (id. ¶¶ 22, 23).1
subsequent to the excessive use of force amounted to a cruel and
unusual punishment, both in violation of his Eighth Amendment
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).
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
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
liability until the Ohio Court of Claims determines otherwise.
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).
A state actor sued in his individual capacity2 under
Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010)
(quoting Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th
The theory of respondeat superior does not apply.
Id. (citing Leach, 891 F.3d at 1246).
A supervisor may be
“‘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
Bellamy, 729 F.2d at 421).
Applying this standard, the Magistrate Judge observed that
brief references to Defendant Morgan which amount to nothing
more than “formulaic legal conclusions” (doc. 31 at 6).
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).
rejected Plaintiff’s argument that the Court could “infer” an
allegation of direct involvement on the premise that state law
administrator,”3 to approve of any penalty—including disciplinary
isolation—lasting longer than 128 hours.
Ohio Admin. Code §
confinement facility used primarily to detain adults for more
As its name implies, however, the SOCF is not
a “full service jail.”4
Rather, it is a facility authorized and
isolation, or “security control,” is committed to the approval
of the Deputy Warden, not the Warden.
Id. § 5120-9-11(B).
Defendant Morgan was involved directly in, or at least approved
In support, the Magistrate Judge cited Bennett v.
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.”
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).
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.
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
Whether a state employee loses his or her immunity
is a decision committed to the Ohio Court of Claims.6
the absence of a ruling by the Court of Claims that strips
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.
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).
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).
recommends a dismissal without prejudice of this claim rather
than a stay as Plaintiff requests.
Plaintiff timely objected to the Magistrate Judge’s Report
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).
Warden has “the ultimate authority to approve or reject the
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)
involvement in mistreatment of an inmate can be inferred from
his job responsibilities (doc. 37 at 3).
He maintains that
discovery is necessary “to explore Defendant Morgan’s role in
constitutional claims (id. at 4).
Plaintiff does not object,
however, to the Magistrate Judge’s recommendation concerning his
state tort law claim.
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
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).
Taylor reversed the
Warden because “a triable question exist[ed] about whether [he]
properly discharged his duty.”
Id. at 81.
By regulation, the
McConnell, 2013 WL 4482411, at *3 (quoting Taylor, 69 F.3d at
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
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
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
portion of the Magistrate Judge’s Report and Recommendation to
which Plaintiff has objected and the filings related thereto.
Given the facts pled and the precedent that binds
involvement on the part of Defendant Morgan.
11(B) reads in full as follows :
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).
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
Plaintiff experienced when there.
Again, that he serves as the
prison’s ultimate authority does not render him liable for the
Plaintiff most certainly has alleged facts sufficient to state a
established policies or procedures—nor the lack thereof—are at
issue here, rendering a Taylor analysis inapposite.
reasoned, thorough and correct and thus we ACCEPT, ADOPT and
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
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.
March 4, 2014
s/S. Arthur Spiegel________________
S. Arthur Spiegel
United States Senior District Judge
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