Johnson v. Ahmed et al

Filing 19

ORDER that plaintiff's 8 11 MOTIONS for appointment of counsel are Denied. REPORT AND RECOMMENDATION that defendants' 8 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be Granted. Any appeal of this matter would not be taken in good faith. This matter shall proceed against defendants Rosie Clagg and Dr. Faisal Ahmed. ( Objections to R&R due by 7/7/2014). Signed by Magistrate Judge Karen L. Litkovitz on 6/17/2014. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES JOHNSON, III,
Plaintiff,

CaseNo. 1:13-cv-921
Black, J.
Litkovitz, M.J.

vs.

FAISAL AHMED, et al.,
Defendants.

ORDER AND REPORT
AND RECOMMENDATION

Plaintiff James Johnson III, an inmate currently incarcerated at the Southern Ohio
Correctional Facility (SOCF), brings this civil rights action pursuant to 42 U.S.C. § 1983 against
defendants Dr. Faisal Ahmed, Ahthony Cadogan, Rosie Clagg, Mona Parks, Dr. John Desmarais,
Linnea Mahlman, John Kasich, Gary C. Mohr, and Gary Croft. (Doc. 1). Upon sua sponte
review ofthe complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), plaintiffs claims
against defendants Gary C. Mohr and John Kasich were dismissed. (Doc. 7). This matter is now
before the court upon defendants Cadogan, Parks, Desmarais, Mahlman, and Croft's motion to
dismiss the complaint for failure to state a claim for relief (Doc. 8) 1, plaintiffs response in
opposition to defendants' motion (Doc. 15), and defendants' reply memorandum (Doc. 16). The
matter is also before the court on plaintiff's motions to appoint counsel. (Docs. 11 and 17).
I. Motions to Appoint Counsel

The law does not require the appointment of counsel for indigent plaintiffs in cases such
as this, see Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993), nor has Congress provided
funds with which to compensate lawyers who might agree to represent those plaintiffs. The
1

Defendants Rosie Clagg and Dr. Faisal Ahmed have not joined in the motion to dismiss and have filed separate
answers to plaintiff's complaint. (Docs. 12 and 14).

appointment of counsel in a civil proceeding is not a constitutional right and is justified only by
exceptional circumstances. Id. at 605-06. See also Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003). Moreover, there are not enough lawyers who can absorb the costs of representing
persons on a voluntary basis to permit the Court to appoint counsel for all who file cases on their
own behalf. The Court makes every effort to appoint counsel in those cases which proceed to
trial, and in exceptional circumstances will attempt to appoint counsel at an earlier stage of the
litigation. No such circumstances appear in this case. Therefore, plaintiff's motions to appoint
counsel are denied.
II. Motion to Dismiss
A. Allegations of the Complaint (Doc. 3)

Plaintiff makes the following allegations in his complaint: Plaintiff was diagnosed with
Hepatitis C. (Doc. 3 at 5). He was informed by defendant Dr. Ahmed that a biopsy was
necessary to determine the course of treatment. (!d.). Plaintiff submitted to a biopsy in order to
obtain treatment. (Id.). Plaintiff received the biopsy in April of2012. (Id.). In July of2012, Dr.
Ahmed told plaintiff to wait six months for the results of the biopsy. (!d.). After plaintiffhad
waited a year with no results, Dr. Ahmed told plaintiff he did not remember anything about the
biopsy and kicked plaintiff out ofhis office after plaintiff tried to remind him. (Id.). Plaintiff
then wrote to defendant Clagg, a health care administrator, who stated that records regarding the
biopsy were in plaintiff's medical file and that she would speak with Dr. Ahmed. (Id. at 7). In
June or July of2013, plaintiffwrote to Clagg a second time and received a response stating that
Clagg would be out of the office for six weeks. (Id.). Plaintiff wrote to Clagg a third time on
September 9, 2013, and received no response. (!d.). Plaintiff then filed an informal complaint
with defendant Cadogan, Clagg's boss, on October 1, 2013. (Id.). Cadogan told Clagg to

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respond to plaintiff. (!d.). Plaintiff still received no response, which prompted him to send a
grievance to defendant Inspector Mahlman on October 28, 2013. (!d.). After filing the
grievance, plaintiff still did not receive medical treatment. (!d.). On October 31,2013, plaintiff
filed an appeal with defendants Chief Inspector Croft and Assistant Chief Inspector Parks
complaining about the lack of medical treatment and advising them to contact defendants
Medical Service Administrator Dr. Desmarais and Director Mohr about the reduction in the
state's medical budget. 2 (!d.). Despite these efforts, plaintiffhas received nothing more than
aspirin for his abdominal pain. (!d.). As a result, his condition has worsened "and spread
infection throughout [his] liver and cause[d] unbearable pain." (!d. at 8).
B. Defendants' Motion to Dismiss (Doc. 8)
Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the
ground the complaint fails to state a claim upon which relief can be granted. (Doc. 8 at 3).
Defendants assert that the only allegations made against them relate to either their supervisory
roles or their official roles in the grievance process, and they cannot be held liable in these
capacities in a lawsuit for deliberate medical indifference under 42 U.S.C. § 1983. (!d. at 7-8).
Defendants specifically aver that Dr. Desmarais was never plaintiff's treating doctor and he did
not play any direct role in plaintiff's care. (!d. at 7). Defendants assert that Cadogan neither
played a direct role in plaintiff's care nor encouraged the alleged misconduct by those who did
play a direct role in his care. To the contrary, they note that plaintiff concedes Cadogan took
action in response to plaintiff's complaints by telling Clagg to respond to plaintiff. (!d. at 8).

2

Plaintiff attached his appeal to Chief Inspector Croft to his complaint. (Doc. 3 at 13 ). The Court may consider
documents integral to or attached to the pleadings when ruling on a Rule 12 motion to dismiss without converting
the motion to one for summary judgment. Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,336
(6th Cir. 2007). In addition, the Court may examine public documents without converting the motion into one for
summary judgment. Wyser-Pratte Mgmt. Co. Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (citing
Kostrzewa v. City of Troy, 347 F.3d 633, 644 (6th Cir. 2001)).

3

Finally, defendants argue that the only allegations in the complaint against defendants Mahlman,
Parks, and Croft relate to their official roles in the grievance process and plaintiff does not allege
these defendants had any role in directly administering medical care to him. (!d. at 8-9).
In his response to the motion to dismiss, plaintiff simply reasserts the core facts alleged in
his complaint. (Doc. 15). 3

III. Applicable Law
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff must allege
facts which, if accepted as true, are sufficient to both "raise a right to relief above the speculative
level" and "state a claim to relief that is plausible on its face." Hensley Mfg., Inc. v. ProPride,
Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference tha:t the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Although the court must
accept all well-pleaded factual allegations in the complaint as true, it 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)). The court must "construe the plaintiffs complaint liberally,

in plaintiffs favor, accepting all factual allegations as true and drawing all reasonable inferences
in favor of the plaintiff." Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir. 2007).
It is well-settled that a document filed prose is "to be liberally construed," and that a pro

se complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers[.]" Pardus, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S.
3

Defendants assert that the motion to dismiss should be treated as unopposed because plaintiff's response to the
motion does not address the arguments made by the moving defendants. (Doc. 16 at 2). However, the Court will
liberally construe plaintiff's response as a memorandum in opposition to defendants' motion to dismiss. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (prose filings are to be held to less stringent standards than formal
pleadings drafted by lawyers).

4

97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme Court's "liberal
construction" case law has not had the effect of"abrogat[ing] basic pleading essentials" in prose
suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
The claim at issue here is a denial of medical treatment in violation of plaintiff's Eighth
Amendment rights. (Doc. 3 at 5). Plaintiffs Eighth Amendment claim is brought under 42
U.S.C. § 1983, which prohibits any person "under color of any statute, ordinance, regulation,
custom, or usage, of any State" from depriving a United States citizen "of any rights, privileges
or immunities secured by the constitution and laws." To prevail on a§ 1983 claim, a plaintiff
must demonstrate "( 1) the deprivation of a right secured by the Constitution or laws of the
United States (2) caused by a person acting under the color of state law." Dominguez v. Corr.

Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Sigley v. City ofParma Heights, 437
F.3d 527, 533 (6th Cir. 2006)).
Prison officials "may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior." Iqbal, 556 U.S. at 676. Rather, "liability
under § 1983 must be based on active unconstitutional behavior and cannot be based upon a
mere failure to act." Shehee v. Lutrell, 199 F.3d 295, 300 (6th Cir. 1999) (internal citations
omitted); see also Nwaebo v. Hawk-Sawyer, 83 F. App'x 85, 86 (6th Cir. 2003) ("[A] complaint
must allege that the defendants were personally involved in the alleged deprivation of federal
rights") (internal citations omitted). Additionally, an official's failure to supervise the
"offending individual is not actionable unless the supervisor either encouraged the specific
incident of misconduct or in some other way directly participated in it." Lutrell, 199 F.3d at 300
(internal citations omitted).

5

IV. Defendants' motion to dismiss the complaint should be granted.
Defendants move to dismiss the complaint on the ground it fails to state a claim for relief
against them because the complaint asserts no facts indicating that movants were personally
involved with plaintiffs medical treatment or that they encouraged the alleged misconduct by
those who were personally involved in his treatment. (Doc. 8). Defendants contend the
complaint alleges facts that relate only to defendants' supervisory liability or defendants' official
roles in the grievance process, and under either circumstance plaintiffs claims are not cognizable
under§ 1983.
Plaintiffs complaint does not allege sufficient facts to support a claim of deliberate
medical indifference under the Eighth Amendment against defendant Dr. Desmarais. The only
allegations in the complaint involving Dr. Desmarais are assertions that plaintiff appealed to
defendants Chief Inspector Croft and Assistant Chief Inspector Parks and advised them to
contact Dr. Desmarais, who is purportedly involved in a statewide scheme to reduce state
budget costs. (Doc. 3 at 7). The complaint does not allege that Dr. Desmarais was ever actively
involved in plaintiffs medical treatment or that Dr. Desmarais encouraged any alleged
misconduct by an individual who did play a direct role in plaintiffs care. Therefore, plaintiffs
claims against defendant Dr. Desmarais should be dismissed.
The facts alleged in the complaint also do not support a claim of deliberate medical
indifference under the Eighth Amendment against defendant Cadogan. Plaintiff does not allege
that Cadogan was actively involved in his medical care. Further, plaintiffs allegations
demonstrate that Cadogan did not encourage or ratify the denial of medical care to plaintiff. To
the contrary, plaintiff alleges that when he wrote an informal complaint to defendant Cadogan
after Cadogan's subordinate, defendant Clagg, stopped responding to plaintiffs letters

6

regarding his medical treatment, Cadogan told defendant Clagg to respond to plaintiffs letters.
(Doc. 3 at 7). Therefore, plaintiffs claim against defendant Cadogan should be dismissed.
Finally, plaintiffs complaint does not allege sufficient facts to support a claim of
deliberate medical indifference against defendants Mahlman, Parks, and Croft. The complaint
contains no allegations to show that these defendants were actively involved in plaintiffs
medical treatment or that they encouraged any alleged misconduct by an individual who did play
a direct role in plaintiffs care. Plaintiffs allegations regarding defendants Mahlman, Parks, and
Croft relate solely to their involvement in the grievance process in their official capacity. (Doc.
3). An official whose role in an action involves only the denial of an administrative grievance
cannot be held liable under§ 1983. Lutrell, 199 F.3d at 300. Therefore, plaintiffs claims
against defendants Mahlman, Parks, and Croft should be dismissed.

IT IS THEREFORE ORDERED THAT:
1. Plaintiffs motions for appointment of counsel (Docs. 11 and 17) are DENIED.

IT IS THEREFORE RECOMMENDED THAT:
1. Defendants' motion to dismiss the complaint for failure to state a claim for relief (Doc. 8) 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).
3. This matter proceed against defendants Rosie Clagg and Dr. Faisal Ahmed.

Date:

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Karen L. Litkovitz
United States Magistrate Judge

7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1: 13-cv-921

JAMES JOHNSON, III,
Plaintiff,

Black, J.
Litkovitz, M.J.
vs.

FAISAL AHMED, 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).

8

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