Dixon v. Mohr et al

Filing 14

ORDER and REPORT AND RECOMMENDATIONS re 13 Complaint filed by William Dixon: It is RECOMMENDED that the complaint be DISMISSED except for failure to protect claims against defendants Greene, Morgan and Oppy. IT IS ORDERED THAT the US Marshal shal l serve the complaint, 12 Order granting IFP and this Order and Report and Recommendations upon defendants Greene, Morgan and Oppy. (Objections to R&R due by 6/7/2012). Signed by Magistrate Judge J. Gregory Wehrman on 5/18/12.(mtw) (Additional attachment(s) added on 5/21/2012: # 1 Certified Mail Receipt) (mtw).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM DIXON,
Plaintiff

vs

GARY MOHR, et al.,
Defendants

Case No. 1:12-cv-294

Dlott, J.
Wehrman, M.J.

ORDER AND REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville,
Ohio, brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional
rights. By separate Order issued this date, plaintiff has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review
of the complaint to determine whether the complaint, or any portion of it, should be dismissed
because it is frivolous, malicious, fails to state a claim upon which relief may be granted or
seeks monetary relief from a defendant who is immune from such relief. See Prison Litigation
Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the

plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th
Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or
when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490
U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d
at 1199. The Court need not accept as true factual allegations that are “fantastic or delusional”
in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). A complaint filed
by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-

2

pleaded factual allegations as true, but 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)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (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.” Id. at 557. The complaint 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).
Plaintiff, who is proceeding pro se, brings this action against Gary Mohr, the Director
of the Ohio Department of Rehabilitation and Correction (ODRC); John Gardner, ODRC’s
Chief Medical Officer; Anthony Cadogan, SOCF’s Chief Medical Officer; Don Morgan,
SOCF’s Warden; Larry Greene, a “warden” at SOCF; Mic Oppy, another “warden” at SOCF;
Ohio Attorney General Mike Dewine; prosecutor Mathis Heck; prosecutor Ward Barentine;
prosecutor Ms. Scott; witness Devon Schultz; witness Angie Walton; Judge A.J. Wagner;
Detective Richard Ward; and John H. Rion.
The lengthy complaint is rambling and difficult to decipher. Construing the complaint
liberally, it appears that plaintiff’s claims against defendants Dewine, Heck, Barentine, Scott,
Schultz, Walton, Wagner, Ward and Rion are based on numerous allegations of impropriety
that occurred with respect to his arrest, prosecution, trial, conviction and 21-year sentence in
Ohio for a criminal offense, which he claims he did not commit and is instead a case of
mistaken identity. (See Doc. 1, Complaint, pp. 5, 13-23, 25).

3

Plaintiff’s claims against defendants Codogan and Gardner are based on allegations of
“negligence” in medical care. (Id., p. 12). Plaintiff has alleged as supporting facts that after he
received emergency surgery when he was stabbed and assaulted by other inmates at SOCF, he
was denied “real pain meds” and was not given a hospital bed at “C.M.C.,” but was instead
placed on a mat on a concrete floor in an over-heated room with “no elevation.” (Id., p. 5). He
also alleges that he “never got any P.T;” he only receives one “Ty3"in the morning and at night
for pain, which is ineffective and causes addiction; “[i]t takes months to see doctor for
medication;” and medical staff “ignore all [his] complaints,” did not check his stomach or
colon when he complained about a “col[o]n issue,” and responded to plaintiff’s report of
“poisoned” by stating only that plaintiff “was not housed in DI - for medical.” (See id., pp. 67).
Finally, it appears that plaintiff is alleging a number of claims against Morgan, Greene
and Oppy, as well as defendant Mohr in his role as “boss” who “should know what’s going
on.” (See id., p. 12). First, it appears that plaintiff is claiming that, as a victim of multiple
attempts on his life by other inmates, the defendants have failed to adequately protect him from
harm. (See id., pp. 5, 7-10). Second, plaintiff’s allegations of “negligence” in medical care
appear to extend to Mohr, as well as Morgan, Greene and Oppy in their supervisory capacity at
SOCF. Third, plaintiff has conclusorily alleged that SOCF staff have stolen “alot of [his]
personal property” and that he “has been denied religious service;” access to the prison law
library, commissary, and legal assistance; “any exercise;” and “visits” at the prison. (Id., p.
10).
As relief, plaintiff requests $10,000,000 in damages; “pain meds back to 3 times a day

4

with 2 Altrums at a time;” the reversal of his criminal conviction or modification of his
sentence to a six-year prison term, or “[i]f we got to go the long road,” placement in protective
custody; access to “free mason books” and items that SOCF made him mail home; and certain
items claimed to have been “stolen by staff.” (Id., pp. 24-25).
Plaintiff has failed to state a cognizable claim for relief against defendants Dewine,
Heck, Barentine, Scott, Schultz, Walton, Wagner, Ward and Rion and any other named
defendant to the extent he alleges they violated his constitutional rights with respect to his
arrest, prosecution and conviction on criminal charges in Ohio. A judgment in favor of
plaintiff on such claims would necessarily imply that his state court conviction or sentence is
invalid. See Heck v. Humphrey, 512 U.S. 477, 487 (1994); Cummings v. City of Akron, 418
F.3d 676, 682-83 (6th Cir. 2005); Schilling v. White, 58 F.3d 1081, 1085-86 (6th Cir. 1995).
Under Heck, when a successful civil rights action under 42 U.S.C. § 1983 would necessarily
imply the invalidity of a plaintiff’s conviction or sentence, the complaint must be dismissed
unless the plaintiff demonstrates that the decision resulting in his confinement has been
reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such a determination, or called into question by a federal court’s issuance
of a writ of habeas corpus under 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87; see also
Edwards v. Balisok, 520 U.S. 641, 643 (1997). It appears clear from the face of the complaint
that plaintiff’s conviction and sentence still stand and have not been overturned or invalidated
in accordance with Heck. Therefore, plaintiff may not proceed with his § 1983 action against
defendants Dewine, Heck, Barentine, Scott, Schultz, Walton, Wagner, Ward and Rion or any
other named defendant on claims challenging his arrest, prosecution and criminal conviction in

5

Ohio. To the extent plaintiff seeks relief in the form of an injunction geared towards a speedier
release from imprisonment through the reversal of his conviction or correction of his sentence,
his sole federal remedy is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. §
2254 after he has exhausted his state court remedies. See Preiser v. Rodriguez, 411 U.S. 475,
500 (1973); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985).
Plaintiff also has not stated a claim upon which relief may be granted against defendant
Mohr, who has been named as a defendant in this action solely on the basis of his supervisory
position as ODRC’s Director. (See Doc. 1, Complaint, p. 12). Respondeat superior does not
apply to § 1983 claims and may not serve as a basis for liability. See Iqbal, 556 U.S. at 676
(citing Monnell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691 (1978)). “Because
vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Id. Liability of supervisory personnel under § 1983 “must be based on more
than the right to control employees.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
“Supervisory liability under § 1983 does not attach when it is premised on mere failure to act;
it ‘must be based on active unconstitutional behavior.’” Greene v. Barber, 310 F.3d 889, 899
(6th Cir. 2002) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). In the
absence of any factual allegations or evidence suggesting that ODRC’s director played an
active role in the alleged violations, plaintiff’s claims against Mohr based on the theory that he
is the “boss” who “should know what’s going on” are insufficient to state a cause of action
under § 1983. (See Doc. 1, Complaint, p. 12). Therefore, defendant Mohr should be dismissed
as a defendant in this action.

6

Plaintiff’s allegations pertaining to the medical care he has received at SOCF also fail
to state a claim for relief under 42 U.S.C. § 1983 against defendants Cadogan and Gardner or
any other named defendant allegedly involved with his medical care at SOCF. As discussed
above with respect to defendant Mohr, to the extent that plaintiff alleges the defendants are
liable solely on the basis of their supervisory positions at SOCF, his allegations are insufficient
to state a claim for relief under § 1983 based on the theory of respondeat superior. See Iqbal,
556 U.S. at 676. Moreover, plaintiff’s factual allegations are insufficient to state a claim upon
which relief may be granted. In order to state a claim under 42 U.S.C. § 1983 concerning a
denial of adequate medical care, plaintiff “must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs” in violation of the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth Amendment violation
occurs “[w]hen the indifference is manifested by . . . prison guards in intentionally denying or
delaying access to medical care” for a serious medical need. Id. at 104; see also Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004).
Such a claim has both an objective and subjective component. Barnett v. Luttrell, 414
F. App’x 784, 787 (6th Cir. 2011); Blackmore., 390 F.3d at 895. The objective component
mandates that there be a “sufficiently serious” medical need. Id. In Blackmore, the Sixth
Circuit pointed out that there are two scenarios in which courts have held that a medical need is
“sufficiently serious” to satisfy the objective component: (1) where the medical need “has been
diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention;” and (2) in cases involving the
prison’s failure to adequately treat a condition or “seemingly minor or non-obvious”

7

complaints, where a delay in treatment is shown to have caused a serious injury, loss or
handicap. See Blackmore, 390 F.3d at 897-88 (and numerous cases cited therein).
The separate subjective component of an Eighth Amendment claim pertains to the
defendant prison officials’ “state of mind” of deliberate indifference, which requires a showing
that the prison officials were “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists” and also drew that inference. See Barnett, 414 F.
App’x at 787-88 (citing Blackmore, 390 F.3d at 895-96); see also Williams v. Mehra, 186 F.3d
685, 691-92 (6th Cir. 1999) (en banc). This component was “intended to prevent the
constitutionalization of medical malpractice claims.” Barnett, 414 F. App’x at 788 (quoting
Dominguez v. Corr. Med. Services, 555 F.3d 543, 550 (6th Cir. 2009) (internal quotation and
citation omitted)). It is well-settled that allegations of negligence in diagnosing or treating
medical conditions are not actionable under § 1983. Estelle, 429 U.S. at 106; Byrd v. Wilson,
701 F.2d 592, 595 n.2 (6th Cir. 1983); Westlake v. Lucas, 537 F.2d 857, 860-61 n.5 (6th Cir.
1976). A prison official may be held liable under the Eighth Amendment for denying humane
conditions of confinement, including proper medical care, only if “he knows that inmates face
a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994); see also Dominquez, 555
F.3d at 550 (“deliberate indifference to a substantial risk of serious harm to a prisoner is the
equivalent of recklessly disregarding that risk”).
Here, plaintiff’s allegations do not state a claim of an Eighth Amendment violation by
any of the named defendants. At most, plaintiff’s allegations regarding the adquacy of medical
care he received after his surgery, and other alleged incidents of “negligence” in responding to

8

his medical issues, may give rise to a claim of negligence on the part of SOCF’s medical staff.
However, “[w]here a prisoner has received some medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims that sound in state tort law.” Westlake, 537 F.2d at
860 n.5; see also Thomas v. Rochell, 47 F. App’x 315, 317 (6th Cir. 2002) (holding that a
“prisoner has no remedy under § 1983 to pursue tort” and medical malpractice claims against
prison doctors). Therefore, the portion of the complaint alleging a denial of adequate medical
care by defendants should be dismissed.
The only claims remaining in the complaint are alleged against defendants Greene,
Morgan and Oppy based on their failure to adequately protect plaintiff from harm by other
inmates and other conclusory allegations. In the absence of “detailed factual allegations,” or
any allegation linking the defendants to the purported offenses, plaintiff’s conclusory claims
that SOCF staff have stolen “alot of [his] personal property” and that he “has been denied
religious service;” access to the prison law library, commissary, and legal assistance; “any
exercise;” and “visits” at the prison, should be dismissed as nothing “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). However, upon review of the complaint and attached exhibits, which
indicate that the SOCF “wardens” were aware and involved in the investigation of specific
incidents involving alleged threats to plaintiff’s safety, the undersigned concludes that
plaintiff’s failure-to-protect claim is deserving of further development and may proceed at this
juncture against defendants Greene, Morgan and Oppy. See 28 U.S.C. § 1915(e)(2)(B).
Accordingly, in sum, the undersigned concludes that all of plaintiff’s claims for relief

9

should be dismissed for failure to state a claim upon which relief can be granted, except that
plaintiff’s failure-to-protect claim against defendants Greene, Morgan and Oppy is deserving
of further development and may proceed at this juncture.
IT IS THEREFORE RECOMMENDED THAT:
All claims in the complaint should be DISMISSED for failure to state a claim upon
which relief may be granted under 42 U.S.C. § 1983, except for plaintiff’s failure-to-protect
claim against defendants Greene, Morgan and Oppy, which should be allowed to proceed. See
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint and motions
submitted by plaintiff for filing in this action, summons, the separate Order issued this date
granting prisoner in forma pauperis status, and this Order and Report and Recommendation
upon defendants Larry Greene, Don Morgan and Mic Oppy as directed by plaintiff. All costs
of service shall be advanced by the United States.
2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,
upon defendants’ attorney(s), a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed with the
Clerk of Court a certificate stating the date a true and correct copy of any document was
mailed to defendants or their counsel. Any paper received by a district judge or magistrate
judge which has not been filed with the clerk or which fails to include a certificate of service
will be disregarded by the Court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may

10

occur during the pendency of this lawsuit.

Date:

May 18, 2012
cbc

s/ J. Gregory Wehrman
J. Gregory Wehrman
United States Magistrate Judge

11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM DIXON,
Plaintiff

Case No. 1:12-cv-294
Dlott, J.
Wehrman, M.J.

vs
GARY MOHR, et al.,
Defendants
NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. 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).