Combs v. Sheriff, Hamilton County

Filing 50

REPORT AND RECOMMENDATION that defendant Oberlander's 41 MOTION for Judgment on the Pleadings be Granted. any appeal of this matter would not be taken in good faith. Objections to R&R due by 7/15/2013. Signed by Magistrate Judge Karen L. Litkovitz on 6/28/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HAROLD COMBS,
Plaintiff,

Case No. 1:12-cv-347
Barrett, J.
Litkovitz, M.J.

vs.
SHERIFF, HAMILTON COUNTY, et al.,
Defendants.

REPORT AND
RECOMMENDATION

Plaintiff filed this civil rights action prose under 42 U.S.C. § 1983 alleging violations of
his constitutional rights. This matter is before the Court on the motion for judgment on the
pleadings filed by defendant Deputy Sheriff Oberlander (Doc. 41 ), and plaintiffs memorandum
in opposition to the motion for judgment on the pleadings. (Doc. 49).

I. Background
Plaintiff Harold Combs filed this civil rights action while he was incarcerated at the
Hamilton County Justice Center. (Doc. 6). He brought claims for violations of his due process
rights, his Eighth Amendment rights, and his First Amendment rights against defendants Sheriff
Simon Leis, Deputy Sheriff Oberlander, and Naphcare, a provider ofhealthcare services to
inmates at the Justice Center. On July 25, 2012, upon a sua sponte review of the complaint, the
undersigned issued a Report and Recommendation finding that plaintiffs due process claims and
claims for deliberate indifference to safety under the Eighth Amendment should be dismissed for
failure to state a claim upon which relief can be granted, but that plaintiff had alleged sufficient
facts to state claims for deliberate indifference to serious medical needs and First Amendment
retaliation against defendants Naphcare and Deputy Sheriff Oberlander.
The Report and Recommendation sets forth the factual allegations underlying plaintiffs
First Amendment retaliation claim against defendants Naphcare and Deputy Sheriff Oberlander.

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(Doc. 7 at 4). The Report and Recommendation states that according to the allegations of the
complaint, plaintiff was retaliated against because he filed grievances and "ask[ed] questions."

(!d., citing 6 at 21 ). Plaintiff alleges his cell assignment was changed multiple times within a
couple of days, requiring plaintiff to move back and forth between the upper and lower tiers
despite his medical condition. (!d., citing Doc. 6 at 5B-5C). Plaintiff alleges the cell transfers
occurred, and he was housed with multiple mentally ill inmates, because he filed grievances
against Deputy Sheriff Oberlander and inquired about prison policies and rules. (!d., citing Doc.
6 at 5D). Plaintiff indicates that at least one move was ordered by the medical department, and
plaintiff was told by the grievance supervisor that he wrote too many grievances and the medical
department thought there was nothing wrong with him. (!d., citing Doc. 6 at 5C-5D). The
Report and Recommendation concluded that liberally construed, these allegations stated a claim
for First Amendment retaliation and plaintiff should be allowed to proceed on this claim against
both defendant Naphcare and defendant Oberlander. (ld. at 5).
Defendants Naphcare and Oberlander thereafter filed separate motions to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6). (Docs. 17, 23). On March 1, 2013, the district judge issued
an Order adopting the July 25, 2012 Report and Recommendation, dismissing defendant Leis
from the lawsuit, and granting defendants Naphcare and Oberlander's motions to dismiss. (Doc.
3 7). The district judge dismissed all claims against these defendants with the exception of the
First Amendment retaliation claim against defendant Oberlander, which Oberlander had not
addressed in his motion to dismiss. (!d. at 11 ). Defendant Oberlander filed the motion for
judgment on the pleadings on March 7, 2013, asserting that the complaint fails to state a claim
for First Amendment retaliation against him. (Doc. 41 ).

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II. Motion for judgment on the pleadings standard
Rule 12(c) provides that "[a]fter the pleadings are closed--but early enough not to delay
trial--a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A district court
reviews a Rule 12(c) motion for judgment on the pleadings under the same standard applicable to
a motion to dismiss under Fed. R. Civ. P. 12(b)(6), EEOC v. JH Routh Packing Co., 246 F.3d
850, 851 (6th Cir. 2001), which authorizes dismissal of a complaint for "failure to state a claim
upon which relief can be granted." The standard for reviewing a motion to dismiss under Rule
12(b)(6) is set forth in the Order issued by the district judge in this matter on March 1, 2013.
(Doc. 37).

III. Defendant Oberlander's motion for judgment on the pleadings on the First
Amendment retaliation claim under 42 U.S.C. § 1983 should be denied.
The law governing a First Amendment retaliation claim alleged by a prisoner under§
1983 is set forth in the district judge's March 1, 2013 Order:
[T]here must be allegations that: '(1) the plaintiff engaged in protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct; and (3) there is a
causal connection between elements one and two - that is, the adverse action was
motivated at least in part by the plaintiffs protected conduct.' Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999). The filing of a prison grievance
satisfies the first prong of a First Amendment retaliation claim. Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).
(Doc. 37 at 10).
The district judge applied the above standard to the allegations plaintiff made in both his
complaint and his supplemental filings and determined that plaintiff had not stated a First
Amendment retaliation claim against defendant Naphcare. (!d. at 10). The district judge found
that although plaintiff alleged in his complaint that the "medical department" ordered him to be
transferred from his cell because he filed grievances (!d., citing Doc. 6-1 at 20), plaintiff clarified

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in his objections to the Report and Recommendation that he had been ordered to move more than
five times by "Corrections, not the Naphcare Medical Department." (!d., citing Doc. 11 at 2).
The district judge further stated that in a supplemental notice plaintiff filed after entry of the
Report and Recommendation, plaintiff alleged that he was placed in the medical unit "by orders
of the Sheriffs Department." (Id., citing Doc. 19 at 2). The Court therefore dismissed the First
Amendment retaliation claim against defendant Naphcare. (!d.).
Defendant Oberlander contends that in light of the dismissal ofNaphcare from this case,
the burden is on plaintiff to allege that Oberlander, the sole remaining defendant, was the party
who took the purported adverse action to discourage plaintiff from filing grievances. (Doc. 41 at
3). Defendant Oberlander asserts that plaintiff has not alleged in either the complaint or in his
supplemental filings that Oberlander was the party who ordered or implemented any of the cell
transfers that occurred while plaintiff was incarcerated at the Justice Center. (!d., citing Doc. 11
at 2, Doc. 19 at 2). Rather, defendant Oberlander asserts that plaintiff alleged in his motion for
leave to proceed in forma pauperis that it was a supervisor instead of the medical department
who instituted one such move, which was made for the purpose of separating plaintiff from
defendant Oberlander and preventing Oberlander from committing further illegal acts rather than
for any retaliatory purpose. (Id. at 3, citing Doc. 3 at 8, 9). Defendant further contends that the
Court has already decided that plaintiff is not alleging that Oberlander ordered or carried out any
of the cell or unit transfers, but instead plaintiff alleges that the Sheriffs Department ordered the
transfers. (Id. at 3-4, citing Doc. 37 at 10).
Plaintiffs supplemental filings clarify that "Corrections" and the "Sheriffs Department"
ordered the allegedly retaliatory cell transfers and plaintiffs placement in the medical unit.
(Doc. 41 at 3, citing Doc. 11 at 2, Doc. 19 at 2; Doc. 37 at 10). Neither plaintiffs complaint nor

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his supplemental filings allege that defendant Oberlander was personally involved in the decision
to transfer plaintiff to various cells or for placing plaintiff in the medical unit or that defendant
Oberlander had any authority to make such transfers. "Persons sued in their individual capacities
under§ 1983 can be held liable based only on their own unconstitutional behavior." Heyerman

v. County of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (citing Murphy v. Grenier, 406 F.
App'x 972, 974 (6th Cir. 2011) ("Personal involvement is necessary to establish section 1983
liability"); Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991) (noting that personal liability
"must be based on the actions of that defendant in the situation that the defendant faced, and not
based on any problems caused by the errors of others, either defendants or non-defendants").

See also Crump v. Michigan Dept. ofCorrections, No. 11-CV-12146, 2013 WL 686405, at *3
(E.D. Mich. Jan. 11, 2013). Accordingly, defendant Oberland's motion is well-taken and the
complaint should be dismissed for failure to state a claim for First Amendment retaliation against
defendant Oberlander.

IT IS THEREFORE RECOMMENDED THAT:
1. Defendant Oberlander's motion for judgment on the pleadings (Doc. 41) be GRANTED.
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal
of any Order adopting this Report and Recommendation would not be taken in good faith. See
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Date:

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United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1:12-cv-347
Barrett, J.
Litkovitz, M.J.

HAROLD COMBS,
Plaintiff,
vs.
SHERIFF, HAMILTON COUNTY, et al.,
Defendants.
NOTICE

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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