McConnell v. Butler County Ohio et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 15 Report and Recommendations. Defendant Abdullah's Motion to Dismiss 9 is DENIED; defendant Jones's Motion to Dismiss 10 is DENIED in part and GRANTED in part. Plaintiff 9;s medical negligence/malpractice claim against defendant Jones is DISMISSED IN ITS ENTIRETY; plaintiff's wrongful death claim against defendant Jones in his official capacity is DISMISSED IN ITS ENTIRETY. Plaintiff's remaining
67;1983 claims against defendant Jones, and plaintiff's wrongful death claim against defendant Jones in his individual capacity, remain pending. This case is RECOMMITTED to the United States Magistrate Judge for further proceedings according to law. Signed by Judge Herman J. Weber on 9/25/14. (sct1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HOLLY CANDACE McCONNELL,
Individually and as Administratrix
Of the Estate on Behalf of Ruby Farley,
Plaintiff
v.

C-1-13-210

BUTLER COUNTY, OHIO, et al.,
Defendants
ORDER
This

matter

is

before

the

Court

upon

the

Report

and

Recommendation of the United States Magistrate Judge (doc. no. 15),
defendants’ objections (doc. nos. 17 and 18 which are duplicate filings)
and

plaintiffs’

response

(doc.

no.

20).

The

Magistrate

Judge

recommended that defendant Abdullah’s Motion to Dismiss (doc. no. 9)
should be denied; defendant Jones’ Motion to Dismiss (doc. no. 10)
should be denied in part and granted in part; and plaintiffs’ Motion to
Amend Her Complaint (doc no. 12) should be conditionally granted.

I.

2
Defendants Anthony Abdullah, M.D. and Richard K. Jones state the
following

objections

to

the

Magistrate

Judge's

Report

and

Recommendation.
1)

In her Complaint and proposed First Amended Complaint, Ms.

McConnell does not assert that defendants Jones or Abdullah were
personally involved in any care provided to the decedent or had any
knowledge of the decedent’s condition during her incarceration.

There

is a complete absence of any facts to show that defendant Jones or
Abdullah were personally involved in the events leading up to Ms.
Farley’s death. Neither does Ms. McConnell allege any policies
promulgated by defendants Jones or Abdullah, but relies instead on
general conclusory allegations.

Thus, she does not state a §1983

claim under existing United States Supreme Court as well as Sixth
Circuit precedent.

Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of

respondeat superior or vicarious liability.

Ms. McConnell’s claims

against defendants Jones and Abdullah are based solely upon their
roles as supervisors or policymakers rather than any individual conduct

3
undertaken by Sheriff Jones or Dr. Abdullah directed toward the
decedent, and the Magistrate Judge erred in finding that plaintiffs’
Complaint and/or proposed First Amended Complaint containing merely
factually naked conclusions and recitations of the elements of her
claim were factually sufficient to state plausible claims under

Iqbal/Twombly.
2)

The Magistrate Judge erred in denying dismissal of redundant

official capacity claims against defendants Abdullah and Jones
because Butler County is also a defendant in this action.

The

Magistrate Judge cites no reason to keep redundant and duplicative
claims in this case other than discretion; therefore, dismissal of the
claims against defendants Abdullah and Jones in their official capacity
is warranted.
3) The Magistrate Judge erred in denying dismissal of Ohio
wrongful

death

individually.

claims

against

defendants

Jones

and

Abdullah

There are no factual allegations of any personal

involvement of Sheriff Jones or Dr. Abdullah in the medical care or
treatment of Ruby Farley or any involvement in the events preceding

4
her death. Ms. McConnell has not pled factual content to allow the
Court to draw the reasonable inference that any actions of Sheriff
Jones or Dr. Abdullah caused the death of Ruby Farley to be actionable
under Ohio Rev. Code §2125.02.
4)

Defendants object to the Magistrate Judge’s granting leave to

amend the Complaint arguing that the proposed First Amended
Complaint is futile because it fails to state legally plausible claims
against defendants Abdullah and Jones. The proposed First Amended
Complaint does not correct the deficiencies raised by defendants’
Motions to Dismiss. Instead, the proposed First Amended Complaint
continues to include claims which the law precludes, resulting in
additional expense to defendants Abdullah and Jones if further Motions
to Dismiss addressing the same issues must be filed.

A Motion to

Amend may be denied for futility “if the court concludes that the
pleading as amended could not withstand a motion to dismiss.” Martin

v. Associated Truck Lines, Inc., 801 F.2d 246, 249 (6th Cir. 1986).
5)

Finally, defendants contend that the Magistrate Judge erred in

recommending that an Amended Complaint be filed before the

5
expiration of the fourteen day period allowed by Fed. R. Civ. P. 72(b) for
objections to the Magistrate’s Report and Recommendation.

This

premature deadline has created confusion in the record and needless
expense to defendants who must respond to premature filings and/or
oppose the premature filings.
On May 28, 2014, the Magistrate Judge ordered the R&R
concerning the prior motions to dismiss filed by defendants Abdullah
and Jones shall apply equally, as shall defendants’ objections thereto,
to plaintiff’s Amended Complaint filed on August 30, 2013; and
defendants Adullah and Jones need not answer the Amended Complaint
until fourteen (14) days following the date that the presiding district
judge rules upon the pending R&R. All other defendants shall file their
answer to the amended complaint within fourteen (14) days of the date
of this Order.

No objections were filed.

The fifth objection is MOOT.

6
II.
Plaintiff responds that the Magistrate Judge correctly concluded
that plaintiff may state a claim for deliberate indifference by alleging
that defendants knew of a class of persons likely to suffer serious harm
but implemented policies that failed to protect those persons.

As

Sheriff and medical director of the jail, defendant Jones and defendant
Abdullah were jointly responsible for overseeing healthcare services
and for developing practices at the Butler County Jail that would
provide adequate treatment for drug and alcohol abuse.

Defendants

approved the medical policies of the jail, including the policies for
treating inmates suffering from the effects of drugs and opiate
withdrawal. Defendants knew that it was an extremely common
occurrence for inmates to suffer from withdrawal while in jail, placing
such inmates at substantial risk of harm or death.
Plaintiff further argues the Court should accept the Magistrate
Judge’s recommendation against dismissal of the official capacity
claims against defendants Jones and Abdullah because there is no
controlling Sixth Circuit or United States Supreme Court law requiring

7
it.

Defendants Jones and Abdullah are key players in this lawsuit and

will be required to participate whether or not the official capacity
claims are dismissed. The Court need not be concerned at this juncture
that the official capacity claims might confuse the jury, as the Court
will instruct jurors on the difference between official capacity and
individual capacity claims. As there is no binding law requiring
dismissal of the official capacity claims and no benefit to doing so at
this

point,

the

Court

should

adopt

the

Magistrate

Judge’s

recommendation that the claims not be dismissed.
Additionally, plaintiff argues that her Complaint states a factually
sufficient claim for wrongful death against both defendants.

Plaintiff

has alleged that the inadequate policies established by Sheriff Jones
and Dr. Abdullah were the moving force behind the death of Ruby Farley,
and thus a proximate cause of her death.

Plaintiff alleges that

defendants owed a duty to the decedent in their capacity as policy
makers for the jail, and that they breached that duty by failing to
implement an adequate policy, which ultimately led to her death.

Ohio

political subdivision immunity under Ohio Rev. Code § 2744.02 does not

8
apply to the claims against defendants in their individual capacity.
The Magistrate Judge correctly refused to apply § 2744.02 to plaintiff’s
wrongful death claims against Sheriff Jones and Dr. Abdullah,
individually. Therefore, Ohio Rev. Code § 2744.02 is inapplicable and
the wrongful death claims are not subject to dismissal.
Finally, plaintiff argues that declining to exercise supplemental
jurisdiction over plaintiff’s medical malpractice claim would create
unnecessarily

duplicative

litigation.

The

state

issues

do

not

substantially predominate over the federal claims at issue. The proof
necessary to establish deliberate indifference will satisfy the elements
of medical malpractice as well. Medical malpractice requires proof that
a physician has either done something that a doctor of ordinary skill,
care and diligence would not have done under the same circumstances,
or that the physician failed to do something that an ordinary physician
would have done.

As the medical malpractice claim will be proven

using

evidence

the

same

needed

to

establish

the

deliberate

indifference claim, the Court should deny defendant’s Motion to Dismiss
this state law claim.

In addition, the Magistrate Judge noted in her

9
Report and Recommendations that dismissal of plaintiff’s pendent state
law claims against Dr. Abdullah would cause duplicative litigation.
Lastly, plaintiff argues the Court should accept the Magistrate
Judge’s recommendation that plaintiff’s Motion to Amend Complaint be
granted.
III.
CONCLUSION
Upon a de novo review of the record, especially in light of the
defendants’ objections, the Court finds that defendants’ objections
have either been adequately addressed and properly disposed of by the
Magistrate Judge or present no particularized arguments that warrant
specific responses by this Court.

The Court finds the Magistrate Judge

has accurately set forth the controlling principles of law and properly
applied them to the particular facts of this case and agrees with the
Magistrate Judge with one exception.
defendants merits discussion by this Court.

One objection raised by
They note that in Henry v.

Clermont County, Case No. C-1-04-320, this Court declined to exercise
supplemental

jurisdiction

over

a

professional

negligence/medical

10
malpractice claim brought by a jail inmate against the physician who
provided medical care to him during his incarceration.

This Court

concluded that plaintiff’s medical malpractice claim predominated over
his Eighth Amendment claim in that case, which was based on the
doctor’s refusal to treat the inmate’s pre-existing shoulder injury, and
telling the inmate to seek treatment from his own physician upon his
release.

This Court found that expert testimony would be required to

establish the standard of care applicable to his negligence claim, while
no expert testimony would be required for his Eighth Amendment claim.
(doc. no. 28, May 6, 2005 Order at p. 8).
Here, as plaintiff correctly points out, her allegations against Dr.
Abdullah are premised upon her contention that he knew that the
decedent and other inmates suffering from drug or alcohol withdrawal
were at a substantial risk of serious harm or death if they were not
given proper treatment.

Despite that knowledge, Abdullah failed to

provide appropriate medical care and/or to establish procedures and
measures to treat such inmates.

Moreover, in this case, plaintiff

submitted with her Complaint the affidavit of Mark Popil, M.D., who

11
opines that Abdullah breached the applicable standard of care by failing
to provide proper procedures for the treatment of an inmate such as
plaintiff’s decedent.

Plaintiff notes that her expert will offer testimony

on both her Section 1983 claim and her medical malpractice claim.
For these reasons, the Court agrees with the Magistrate Judge’s
recommendation that the Court exercise supplemental jurisdiction over
plaintiff’s state law negligence/medical malpractice claim.
Accordingly,

the

Court

hereby

ADOPTS

the

Report

and

Recommendation of the United States Magistrate Judge (doc. no. 15).
Defendant Abdullah’s Motion to Dismiss (doc. no. 9) is DENIED;
defendant Jones’s Motion to Dismiss (doc. no. 10) is DENIED in part and
GRANTED in part. Plaintiff’s medical negligence/malpractice claim
against defendant Jones is DISMISSED IN ITS ENTIRETY; plaintiff’s
wrongful death claim against defendant Jones in his official capacity is
DISMISSED IN ITS ENTIRETY. Plaintiff’s remaining §1983 claims
against defendant Jones, and plaintiff’s wrongful death claim against
defendant Jones in his individual capacity, remain pending.

12
Plaintiff filed her Amended Complaint on August 30, 2013 (doc. no.
16) and this Order fully applies to the Amended Complaint as ordered by
the Magistrate Judge in her Order dated May 28, 2014 (doc. no. 22).
This case is RECOMMITTED to the United States Magistrate Judge
for further proceedings according to law.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court