Thompson v. Esham et al

Filing 23

ORDER adopting Report and Recommendation re 7 Report and Recommendation; Plaintiff's claims against Defendant McCrosky and Defendants Sears, Hutchinson, Henson, Lewis, Layne and Butterbaugh are dismissed for failing to state a claim. Signed by Judge Michael R. Barrett on 2/22/16. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Gerald Thompson,
Plaintiff,

Case No. 1:15cv553

v.

Judge Michael R. Barrett

Lt. Esham, et al.,
Defendants.
ORDER
This matter is before the Court upon the Magistrate Judge’s October 2, 2015
Order and Report and Recommendation (“R&R”) recommending that certain causes of
action in Plaintiff’s Complaint be dismissed; and ordering that Plaintiff provide the Court
with service copies of his complaint in compliance with the Deficiency Order filed
September 1, 2015. (Doc. 7). Plaintiff filed objections to the R&R (Doc. 11), but then
also filed a Motion to Amend Complaint (Doc. 10).
On November 19, 2015, the Magistrate Judge entered a second Order and R&R
ordering that Plaintiff’s Motion to Amend be granted; ordering the October 2, 2015 Order
and R&R remain in effect except that the recommendation in Doc. 7 that Rogers be
dismissed as a Defendant is vacated; and recommending that certain claims in
Plaintiff’s Amended Complaint be dismissed. (Doc. 20). Plaintiff did not file objections
to the November 19, 2015 R&R.
When objections to a magistrate judge’s report and recommendation are
received on a dispositive matter, the assigned district judge “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed.

R. Civ. P. 72(b)(3). After review, the district judge “may accept, reject, or modify the
recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Plaintiff objects to the dismissal of his claim against Defendant McCrosky for the
loss or destruction of Plaintiff’s personal property. Plaintiff maintains the property stolen
or lost by McCrosky included Brady material, and therefore he has been denied due
process. However, as the Magistrate Judge explained, Plaintiff has not alleged any
facts which indicate that the state post-deprivation remedies are inadequate or
unavailable to redress the wrong. Accord Copeland v. Machulis, 57 F.3d 476, 479 (6th
Cir. 1995) (explaining that in a § 1983 case claiming the deprivation of a property
interest without procedural due process of law, the plaintiff must plead and prove that
state remedies for redressing the wrong are inadequate). In his Objections, Plaintiff has
not pointed to any such allegations, or included any new allegations in his Amended
Complaint which would support Plaintiff’s claim. Therefore, the Court OVERRULES
Plaintiff’s Objections to the dismissal of his due process claim against Defendant
McCrosky based on the loss or destruction of Plaintiff’s personal property.
Plaintiff also objects to the dismissal of his claims against Defendants Sears,
Hutchinson, Henson, Lewis, Layne and Butterbaugh for their alleged “big dog/pet
cannibal dehumanizing practices” before and after every “chow.” Plaintiff explains that
evidence of these practices is contained in the “D.V.R.” of his cell. Plaintiff elaborates
that the dehumanizing practices include being rudely called a “big dog” and whistling at
him as if he is a “big dog.” However, as the Magistrate Judge explained, allegations of
verbal abuse and harassment are insufficient to support a claim under Section 1983.

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Accord Wingo v. Tennessee Dep't of Corr., 499 F. App'x 453, 455 (6th Cir. 2012)
(“Verbal harassment or idle threats by a state actor do not create a constitutional
violation and are insufficient to support a section 1983 claim for relief.”) (citing Ivey v.
Wilson, 832 F.2d 950, 955 (6th Cir. 1987)).

Therefore, the Court OVERRULES

Plaintiff’s Objections to the dismissal of his claims against Defendants Sears,
Hutchinson, Henson, Lewis, Layne and Butterbaugh for their alleged dehumanizing
practices.
Based on the foregoing, the Magistrate Judge’s October 2, 2015 R&R (Doc. 7) is
ADOPTED except to the extent that the Magistrate Judge’s November 19, 2015 Order
ordered that the recommendation that Rogers be dismissed as a defendant be vacated;
and the November 19, 2015 R&R (Doc. 13) is ADOPTED.
Accordingly, it is ORDERED that:
1. The following causes of action alleged in Plaintiff’s complaint are DISMISSED
on the ground that Plaintiff has failed to state a claim upon which relief may
be granted by this Court:
a. Plaintiff’s claim against Defendant McCrosky for the loss or destruction of
Plaintiff’s personal property;
b. Plaintiff’s claims against Defendants Sears, Hutchinson, Henson, Lewis,
Layne and Butterbaugh for their alleged “big dog/pet cannibal
dehumanizing practices.”
2. The following causes of action alleged in Plaintiff’s Complaint shall proceed:
a. Plaintiff’s claims against two SOCF staff members, “Lt. Esham” and “Nurse
Hart,” based on Esham’s alleged use of excessive force against Plaintiff on
January 25, 2015; and Hart’s alleged denial of medical care to Plaintiff
following the January 25, 2015 incident, which involved the use of mace.”
3. Plaintiff’s Amended Complaint (Doc. 10) is DISMISSED for failure to state a
claim upon which relief may be granted, except for the following claims:
a. Plaintiff’s claim against Defendants Esham and Rogers based on their
alleged use of excessive force in an incident that occurred on June 11,
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2015 at SOCF;
b. Plaintiff’s claim against two “John Doe” defendants based on their
participation in the incident involving the alleged use of excessive force that
occurred on January 25, 2015 at SOCF; and
c. Plaintiff’s claims against defendants Duke Cool and Cynthia Davis for
failing to protect him from known risks to his safety.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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