McDougald V. Mahlman

Filing 108

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED that Defendants' motion for summary judgment 73 be GRANTED; that Plaintiff's motion to supplement his response 106 be GRANTED, despite its untimeliness; that Plaintiff's motion to proc eed on judgment 107 be DENIED as MOOT; and this case be CLOSED. Objections to R&R due by 8/29/2018. Signed by Magistrate Judge Stephanie K. Bowman on 8/14/2018. (km)(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
JERONE MCDOUGALD,

Case No. 1:16-cv-317

Plaintiff,
Black, J.
Bowman, M.J.

vs
LINNEA MAHLMAN, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a prisoner at the Southern Ohio Correctional Facility (hereinafter, “SOCF”)
and frequent litigant in this Court, 1 filed this civil rights action in February 2016. This
matter is now before the Court on Defendants’ (Mahlman, Lancaster, Bailey and Nolan)
motion for summary judgment (Doc. 73) and the parties’ responsive memoranda. (Docs.
94, 98). Also, the Court will address Plaintiff’s recently filed (but not yet ripe) motion for
leave to supplement his response (Doc. 106) and motion to proceed to judgment on
Defendants’ motion for summary judgement (Doc. 107) which were filed as this Report
and Recommendation was being finalized.

1See, e.g., Case Nos: 1:08-cv-744 (claim of excessive force during arrest); 1:16-cv-317 (First Amendment
retaliation claims); 1:16-cv-497 (Eighth Amendment claims regarding use of pepper spray on multiple
dates); 1:16-CV-500 (claim relating to medical care for colitis, including allegedly prescribed high calorie
diet); 1:16-cv-633 (case transferred to Eastern Division, reopened as 2:16-cv-545); 1:16-cv-900 (claims
regarding use of pepper spray and retaliation); 1:17-cv-72 (above-captioned case regarding involuntary
blood draw); 1:17-cv-91 (alleged violation of due process rights in RIB hearing, and retaliation claim); 1:17cv-95 (claim regarding use of pepper spray); 1:17-cv-124 (claim regarding use of pepper spray); 1:17-cv127 (claim regarding “flood of biocontaminate” in cell); 1:17-cv-196 (retaliation claim); 1:17-cv-464
(involuntary blood draw), 1:18-cv-80 (pepper spray incident of August 7, 2017); 1:18-cv-93 (September 28,
2017 alleged attack and denial of medical treatment); 1:18-cv-135 (same September 28, 2017 incident);
2:16-cv-545 (claim regarding failure to provide kosher meals). In addition, Plaintiff previously has filed two
petitions for habeas corpus: Case Nos. 1:11-cv-790; 1:16-cv-565. The undersigned recently noted in Case
No. 1:16-cv-500 that Plaintiff appears to be equally litigious in state court.

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I. Background and Facts 2
Jerone 3 McDougald (“Plaintiff”) brings this civil rights action under 42 U.S.C. §
1983 alleging several prison employees violated his Constitutional rights. In addition to
filing his original complaint (Doc. 7), Plaintiff was permitted to file a first amended
complaint (Doc. 12) 4 and a second amended complaint (Doc. 13) which is the operative
pleading.
After the Court’s initial screening (Docs. 6, 36) as required under the Prison
Litigation Reform Act, see 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1), the following
three claims remain: (1) retaliation in violation of the First Amendment, (2) failure to
protect in violation of the Eighth Amendment, and (3) denial of access to the courts in
violation of the First Amendment.
Relevant to the remaining claims, Plaintiff alleges that defendants Mahlman and
Lancaster retaliated against him for utilizing the prison grievance process and filing
lawsuits in violation of the First Amendment. He alleges they did this by issuing false
conduct reports against him, searching his cell to confiscate grievance forms, and
refusing to provide him with new forms. (Doc. 13, p 1-5, 11). Plaintiff next asserts that
Mahlman acted with deliberate indifference to his safety based on her failure “to
investigate and take corrective action” in response to his complaints of excessive force
and/or threatened abuse by prison staff. As such, Plaintiff asserts an Eighth Amendment

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It is unclear to the Court based upon the record presented (and is an issue that was not raised by
Defendants) but it appears as if Plaintiff may not have exhausted his administrative remedies as there is
no evidence that he appealed any disposition of his grievances to the Chief Inspector nor is there any
evidence that Plaintiff filed any grievances directly against Mahlman to the Chief Inspector or Warden.
3 Plaintiff has consistently referred to himself as Jerone in this Court. However, as previously noted in
other cases, the Court recognizes that ODRC records list his name as Jerome.
4
Plaintiff’s first amended complaint (Doc. 12) appears only to signify that the defendants are being sued
in their individual and official capacities.

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failure to protect claim against defendant Mahlman. (Doc. 13, p 1-5). Plaintiff further
alleges that his personal property was confiscated on December 16, 2015, including legal
documents pertaining to his criminal case. Plaintiff alleges that he informed defendants
Bailey and Nolan of the issue, but that he was threatened with a conduct report for lying
to institutional staff in response and was not given his property back until February 16,
2016. He claims that he missed a deadline as a result of the delay in obtaining his
materials. (See Doc. 13, p 5, 9-10).
Defendants assert that they acted reasonably under the circumstances and are
therefore entitled to judgment as a matter of law. The undersigned agrees.
II. Defendants’ motion for Summary Judgment is well-taken
A. Standard of Review
A motion for summary judgment should be granted if the evidence submitted to
the court demonstrates that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 24748, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving
party must demonstrate the absence of genuine disputes over facts which, under the
substantive law governing the issue, could affect the outcome of the action. Celotex
Corp., 477 U.S. at 323.
In response to a properly supported summary judgment motion, the non-moving
party “‘is required to present some significant probative evidence which makes it
necessary to resolve the parties' differing versions of the dispute at trial.’” Harris v.
Adams, 873 F.2d 929, 931 (6th Cir.1989) (quoting Sixty Ivy Street Corp. v. Alexander,

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822 F.2d 1432, 1435 (6th Cir.1987)). The Court must evaluate the evidence, and all
inferences drawn therefrom, in the light most favorable to the non-moving party.
Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986); Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir.2002);
Little Caesar Enterprises, Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.2000).
If, after an appropriate time for discovery, the opposing party is unable to
demonstrate a prima facie case, summary judgment is warranted. St. v. J.C. Bradford
& Co., 886 F.2d 1472, 1478 (6th Cir. 1989) (citing Celotex and Anderson). A principal
purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex, 477 U.S. at 323–24. The moving party need not support its motion
with evidence disproving the opposing party's claims. Rather, the moving party need
only point out there is an absence of evidence supporting such claims. Hartsel v. Keys,
87 F.3d 795, 799 (6th Cir.1996) (citing Celotex Corp., 477 U.S. at 325). Nor must the
Court search the entire record for material issues of fact. Street, 886 F.2d at 1479–80.
The court need only determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. “Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’” Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. First Amendment Claim
To state a retaliation claim, a plaintiff must allege three elements: (1) that he was
engaged in protected conduct; (2) the adverse action was taken against him that would

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deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the
adverse action was motivated at least in part by the plaintiff’s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Notably, “conclusory allegations of retaliatory motive ‘unsupported by material
facts will not be sufficient to state ... a claim under §1983.’” Harbin–Bey, 420 F.3d at 580,
quoting Gutierrez v. Lynch, 826 F.2d1534, 1538–39 (6th Cir. 1987); see also Murray v.
Unknown Evert, 84 F. App'x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to
28 U.S.C. § 1915A, “[c]onclusory allegations of a retaliatory motive with no concrete and
relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations
omitted); Lewis v. Jarvie, 20 F. App'x 457, 459 (6th Cir. 2001)(“bare allegations of malice
on the defendants' parts are not enough to establish retaliation claims”). “[A]lleging merely
the ultimate fact of retaliation is insufficient.” Murphy v. Lane, 833 F.2d 106, 108 (7th Cir.
1987). Retaliation claims must include a “chronology of events from which retaliation may
plausibly be inferred.” Ishaag v. Compton, 900 F.Supp. 935 (W.D. Tenn. 1995), quoting
Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988).
From what the Court can decipher from the amended complaint, Plaintiff is alleging
that in retaliation for filing Informal Complaint Resolutions (“ICRs”) and grievances (the
protected activity), Defendants Mahlman wrote conduct reports against him for lying, gave
false information and ordered Lancaster to search Plaintiff’s cell (the adverse action).
(See Doc. 13, p1-4).
Defendants contend Plaintiff had hoarded ICRs in his cell and was using these
forms to write complaints for other inmates – in violation of institutional rules. For this
reason, Mahlman directed Lancaster to search Plaintiff’s cell. Blank ICRs were recovered

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and returned to the ICR box in the common area of the unit. (Doc. 73-3, Def. Ex. 2,
Mahlman Affid., ¶¶ 52-56; Doc. 73-8, Def. Ex. 6, Lancaster, Affid. ¶¶ 8, 9, 10). Plaintiff
filed a grievance against Lancaster. Mahlman responded to the grievance by informing
Plaintiff that she ordered the search and that she does not answer complaints on herself.
Plaintiff’s exhibit referencing the inmate grievance pamphlet (Doc. 13, p12 (third column,
immediately above where Plaintiff had circled)), specifically provides that grievances
about the Inspector must be filed with the Chief Inspector – not with the Inspector. (Doc.
73-3, Def. Ex. 2, Mahlman Affid., ¶¶ 57-58).
In opposing a defendant’s properly supported motion for summary judgment, a
plaintiff must “designate specific facts in affidavits, depositions, interrogatories, or other
factual material” from which a reasonable jury could find in his favor. Maston v.
Montgomery Cty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 849 (S.D. Ohio 2011). A
plaintiff “cannot rest on the mere allegations of the pleadings.” Id. at 851-52 (holding that
a pro se party cannot rely on allegations or denials in unsworn filings when opposing a
motion for summary judgment). Here, Plaintiff has provided nothing beyond conclusory
assertions to rebut the evidence provided by Defendants. 5 He has provided no support
that the alleged adverse action taken would deter an ordinary person from filing ICRs or
grievances. In fact, it has not even deterred Plaintiff who continues to utilize the grievance

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In support of his memorandum in opposition to Defendants’ motion for summary judgment, Plaintiff filed
a self-serving declaration (not an affidavit) which relates only to discovery requests he claims to have
been denied and which have been or should have been raised in prior motions to compel that this Court
previously addressed. (Doc. 94, PageID#:700-701). In addition, he filed an unnotarized declaration of
Terry Tyrone Pullen, Jr. which asserts that he observed Plaintiff’s cell being searched and that Lancaster
“roll[ed] up 3 to 4 informal complaints and put them in his pocket…”. (Doc. 94, PageID#: 702, 704).
Although Plaintiff’s motion to supplement (Doc. 106) is untimely, the Court has reviewed the two selfserving declarations of Plaintiff which state that his cell was searched by Lancaster, a fact not in dispute,
and that he reported an assault by prison staff on December 10, 2015 which was followed by Mahlman
initiating a conduct report against him for lying – again, issues not in dispute.

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process at SOCF and continues to file complaints in this Court. Moreover, he has
provided no evidence to show that the action taken was retaliatory in nature. To the
contrary, the evidence establishes that Defendants’ actions were not retaliatory and, in
fact, were accomplished for legitimate institutional purposes. Accordingly, Defendants
are entitled to judgment as a matter of law with respect to Plaintiff’s retaliation claim.
C. Failure to Protect
Plaintiff contends that Mahlman violated his rights under the Eighth Amendment
and acted with deliberate indifference to his safety based on her failure “to investigate
and take corrective action” in response to his complaints of excessive force and/or
threatened abuse by prison staff. Plaintiff claims that Mahlman either disregarded the
incidents, falsified information in the grievance dispositions, and/or covered up
wrongdoing. (Doc. 13, p 2-5). 6
A prison official's “deliberate indifference” to a substantial risk of serious harm to
an inmate violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828-29,
114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). However, “prison officials who actually knew
of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk even if the harm ultimately was not averted. A prison
official's duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard
that incorporates due regard for prison officials’ ‘unenviable task of keeping dangerous
men in safe custody under humane conditions.’” Id. at 844 (citations omitted).

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Plaintiff also takes issue with Mahlman for restricting his access to the grievance process due to his
abusive of the process. Plaintiff filed 34 ICR and six grievances in under 3 months. (Doc. 13 at 5).
However, this claim was dismissed through the initial screening order. See Doc. 36

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Defendants contend that there is no general right of inmates to be protected
against unsubstantiated, unreasonable claims of or unreliable threats. And regardless,
Defendants contend that Mahlman and the Institutional Inspector’s Office performed due
diligence in investigating Plaintiff’s use of force and unreported use of force claims and
alleged threats made against Plaintiff. (See generally, Doc. 73-3, Aff. Mahlman). The
Court agrees. The record is replete with evidence of Mahlman responding to the ICRs
and grievances filed by Plaintiff. In addition, the evidence shows that Plaintiff has a history
of lying about these alleged incidents of abuse and abusing the grievance process. (Doc.
73-3, Aff. Mahlman, ¶¶94-96, 122, 15-24). A pattern of abuse that he has continued in
this court. (See Footnote 1).
Plaintiff has failed to show that Defendant Mahlman was aware of facts showing
that Plaintiff faced a substantial risk of serious harm or that Mahlman drew such an
inference. Moreover, Plaintiff has failed to show that Mahlman failed to respond to his
complaints and grievances. The investigations of the alleged incidents and conduct at
SOCF found no unreported use of force where that was alleged by Plaintiff and where
use of force was noted it was found not to be in violative of law or rules. The record shows
that Plaintiff’s complaints were fully investigated by Mahlman and included a review of
camera footage at the time of the alleged incidents and follow-up MERs which clearly
showed Plaintiff was not telling the truth. (Doc. 73-3, Affd. Mahlman ¶¶ 85, 87-91, 108,
112-14, 129; Doc. 73-14, Def. Ex.16, MERs).
Here again, Plaintiff has failed to submit any admissible evidence to support his
claim. Plaintiff’s opposition to Defendants’ motion for summary judgment rests entirely
on unsworn declarations and complaint forms that do not offer the sufficient evidence to

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support his claims. Thus, because Plaintiff has failed to submit any evidence which
creates a genuine issue of fact as to whether Defendants' actions were reasonable under
the circumstances, summary judgment should be granted to Defendants in this regard. 7
D. Access to Courts
Plaintiff alleges that his personal property was confiscated on December 16, 2015,
including legal documents pertaining to his criminal case. (Doc. 13). Plaintiff alleges that
he informed Defendants Bailey and Nolan of the issue, but that he was threatened with a
conduct report for lying to institutional staff in response and was not given his property
until February 16, 2016. He claims that he missed a deadline as a result of the delay in
obtaining his materials. Specifically, Plaintiff appears to assert that his property was
confiscated from his cell on December 16, 2015. On January 7, 2016, Plaintiff alleges
that he attempted to stop Sgt Bailey to tell him that he had a court deadline approaching
and he needed his legal documents. Plaintiff further alleges that he filed an Informal
Complaint with Nolan about the return of his property; yet Nolan threatened Plaintiff with
a conduct report for lying to Institutional Staff. Thereafter, Plaintiff claims that on February

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Additionally, it appears as if Plaintiff is making a claim against Defendants Mahlman, Bailey, and Nolan
for failure to supervise alleging that they somehow failed to take appropriate action or oversee as a
supervisor other SOCF employees. Although this claim did not survive the initial screening order, in an
abundance of caution, the undersigned finds such a claim fails. “To establish liability under 42 U.S.C. §
1983 against an individual defendant, a plaintiff ‘must plead and prove that the defendant was personally
involved in the conduct that forms the basis of his complaint.’” Six v. Beegle, No. 2:11-cv-00698, 2012 WL
1580958 *2 (S.D. Ohio, May 4, 2012) (quoting Tarpley v. Jefferson County Comm’rs, No. 2:09-cv-199, 2010
WL 1253546 (S.D. Ohio Mar. 30, 2010). “[L]iability under § 1983 must be based on active unconstitutional
behavior and cannot be based upon a ‘mere failure to act.’” Easley v. Nixon-Hughes, No. C-1-06-863, 2010
WL 1170099 *3 (S.D. Ohio, Feb. 22, 2010) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
“The supervisor is not liable for failing to supervise the offending employee unless the supervisor ‘either
encouraged the specific incident of misconduct or in some other way directly participated in it.’” Id. To the
extent that Plaintiff’s claims are based on respondeat superior, such claims are not cognizable in a § 1983
action and should be dismissed.

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16, 2016, his legal documents and books were returned to his cell. According to Plaintiff,
this delay impeded his access to the Court. (Doc. 13, p5, 9).
Detrimental to Plaintiff’s claim, however, is the fact that he previously brought suit
against ODRC in the Court of Claims based upon these very same factual allegations - a
fact which Plaintiff failed to inform this Court of when he sought leave to amend his
complaint. (See Docs. 73-23, 73-24, 73-25). Thus, this prior Court of Claims case
constitutes a waiver of his right to sue for the same conduct in this Court under §1983.
See Leaman v. Ohio Dept. of Mental Retardation & Dev. Disabilities, 825 F.2d 946 (6th
Cir. 1987) (en banc), cert denied, 487 U.S. 1204 (1988). Furthermore, Plaintiff’s pro se
status does not remedy the waiver. Based upon Plaintiff’s extensive litigation history,
both here and in the Court of Claims, 8 it is clear to this Court that Plaintiff made a knowing,
intelligent and voluntary decision to file his claim in the Court of Claims and accept any
waiver that followed from that decision. See Williams v. Smith, No. 05-CV-845, 2006 U.S.
Dist. LEXIS 52864, *32 (S.D. Ohio Aug. 1, 2006) citing Kajfasz v. Haviland, No. 01-3606,
55 Fed. Appx. 719, 721-722 (6th Cir. Jan. 15, 2003). Thus, Defendants should be granted
judgment on this claim.
However, even if the waiver did not apply, the Defendants would still be entitled to
judgment. In order to state a claim for denial of access to the courts in violation of the
First Amendment, a prisoner must demonstrate actual prejudice to pending or
contemplated litigation, such as the dismissal of a case, being unable to file a complaint,

8 See Footnote 1. Also the following filed cases in Ohio’s Court of Claims: McDougald v. ODRC, Case
No.: 2016-00207; McDougald v. ODRC, Case No.: 2016-00208; McDougald v. ODRC, Case No.: 201600376; McDougald v. ODRC, Case No.: 2016-00469; McDougald v. ODRC, Case No.: 2016-00552;
McDougald v. ODRC, Case No.: 2016-00607; and McDougald v. ODRC, Case No.: 2016-00665.

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or missing a court-imposed deadline. Jackson v. Gill, 92, Fed.Appx. 171, 173 (6th Cir.
2004) (citing Lewis v. Casey, 518 U.S. 343, 351 (1995)).
Plaintiff’s denial of access to court claim arises out of his criminal case in Scioto
County Ohio, wherein Plaintiff was initially indicted in January 2007 and sentenced to a
total term of twenty years in prison due to drug charges and having a weapon under
disability. Defendants assert that the record in his criminal case establishes that Plaintiff
was not prejudiced in any way. (See Doc. 73-26, Def Ex. 29, Scioto County Appeals
Docket Sheet). The record establishes that Plaintiff filed his fifth petition for postconviction relief on November 17, 2015, over eight and one-half years after he was
sentenced. Plaintiff alleges that his documents were taken on December 16, 2015.
According to the Scioto County docket sheet, Plaintiff filed a motion for leave to file a
motion for a new trial and a brief in support of said motion on December 18, 2015. While
his documents were allegedly being withheld, on January 19, 2016 and January 25, 2016,
respectively, the state filed a motion for extension of time and a response to the petition
for post-conviction relief as well as a response to the motion for a new trial. Two days
later and without waiting for a reply to be filed by Plaintiff, on January 27, 2016, the Court
denied Plaintiff’s petition for post-conviction relief and motion for leave to file a motion for
a new trial. Although Plaintiff did file a motion for extension to file a reply on January 27,
2016, the Court did not find a reply necessary as it ruled so quickly after the state’s
response was filed. (See Doc. 73-26, Judgment Entry dated 1/25/2016). Plaintiff timely
appealed on February 22, 2016.

Thus, it is clear to this Court that Plaintiff was not

prejudiced in any way. As such, even if Plaintiff had not waived this claim, Defendants

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are entitled to judgment as a matter of law with respect to the denial to access to courts
claim.
D. Qualified Immunity and Eleventh Amendment Immunity
Last, Defendants assert that they are entitled to qualified immunity on claims filed
against them in their individual capacities because they acted reasonably under the
circumstances and Eleventh Amendment immunity in their official capacities because the
state has not waived its sovereign immunity.
Qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity not only insulates
government officials from individual liability for money damages, but from the burdens
and expenses of litigation and trial. Saucier v. Katz, 533 U.S. 194, 200–201 (2001). The
doctrine of qualified immunity is intended to balance the following competing interests:
“the need to hold public officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231,129 S. Ct. 808 (2009).
Qualified immunity applies regardless of whether the official's error was a mistake of law
or a mistake of fact, or a mistake based on mixed questions of law and fact. Id.
Where a state has not waived its immunity, the Eleventh Amendment acts as a
jurisdictional bar to a federal court lawsuit against a state. Wolfel v. Morris, 972 F.2d 712,
718 (6th Cir. 1992); Wilson-Jones v. Caviness, 107 F.3d 358, 358 (6th Cir. 1997). Ohio
has not waived its sovereign immunity, and Congress did not disturb the states’ Eleventh

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Amendment immunity when it passed 42 U.S.C. § 1983. Wolfel, 972 F.2d at 718; Mackey
v. Cleveland State Univ., 837 F. Supp. 1396, 1403 (N.D. Ohio 1993). The Eleventh
Amendment thus precludes all suits, whether for injunctive or monetary relief, against the
state and its departments. Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 152 n.2 (6th
Cir. 1995) (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100– 01,
79 L.Ed.2d 67 (1984)). Moreover, a suit against a state official in his or her official capacity
is deemed a suit against the official’s office. Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989). Accordingly, a suit against a state official in his or her official capacity is no
different from a suit against the state itself, and is also barred by the Eleventh
Amendment. Id.
Since Defendants are entitled to judgement on the merits the Court will not expand
on the immunity issues other than to find that Defendants are entitled to qualified immunity
as to the claims against them in their individual capacities and Eleventh Amendment
immunity as to the claims against them in their official capacities.
III. Conclusion
For these reasons, is therefore RECOMMENDED that Defendants’ motion for
summary judgment (Doc. 73) be GRANTED; that Plaintiff’s motion to supplement his
response (Doc. 106) be GRANTED, despite its untimeliness; that Plaintiff’s motion to
proceed on judgment be DENIED as MOOT; and this case be CLOSED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERONE MCDOUGALD,

Case No. 1:17cv317

Plaintiff,
Black, J.
Bowman, M.J.

vs
LINNEA MAHLMAN, 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).

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