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)

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