Gallant v. Cadogan et al

Filing 51

ORDER adopting Report and Recommendation re 5 Report and Recommendation. Signed by Judge Michael R. Barrett on 8/18/17. (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
Jeremy P. Gallant,
Plaintiff,
Case No.: 1:16-cv-00487
v.
Judge Michael R. Barrett
Anthony Cadogan, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court on the Magistrate Judge’s May 3, 2016 Report
and Recommendation (“R&R”) that portions of Plaintiff’s Complaint should be dismissed
for failure to state a claim upon which relief may be granted. (Doc. 5).
The parties were given proper notice pursuant to Federal Rule of Civil Procedure
72(b), including notice that the parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947,
949-950 (6th Cir. 1981). Plaintiff filed Objections to the R&R. (Doc. 7). Defendants
filed a Response to Plaintiff’s Objections. (Doc. 17).
For the reasons stated below, Plaintiff’s objections are OVERRULED; and the
Court ADOPTS the Magistrate Judge’s May 3, 2016 R&R.
I. BACKGROUND
Plaintiff is an inmate currently incarcerated at the Southern Ohio Correctional
Facility (“SOCF”). Plaintiff brings his claims pro se under 42 U.S.C. §1983 against
numerous SOCF employees and “other unidentified state officials” alleging that
Defendants violated his constitutional rights. (Doc. 5).

In his first cause of action, Plaintiff alleges that Dr. Faisal Ahmed failed to treat a
broken bone and infection in Plaintiff’s right hand; and that Dr. Ahmed and unknown
“John/Jane Doe” defendants assaulted Plaintiff during a medical examination on March
9, 2015. (Doc. 5). In his second cause of action, Plaintiff alleges that “John/Jane Doe”
defendants retaliated against Plaintiff and exposed Plaintiff to a harmful chemical
substance on July 2, 2015.

Plaintiff alleges further that “unidentified medical staff”

refused to provide medical treatment after the exposure. (Doc. 5). In this third cause of
action, Plaintiff claims that Defendants Mahlman, Wilson, Hunyadi and other
“unidentified state officials” have restricted his use of the prison grievance procedures.
(Doc. 5). In his fourth cause of action, Plaintiff brings action against Defendants Cool,
Lieutenant Frazie, Captain Whitman, Mead, Satterfield, and “other unidentified state
officials” for “U.S. mail tampering and obstructions.” (Doc. 5).
II. ANALYSIS
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).
Under the Prison Litigation Reform Act, a district court is required to conduct an
initial review of any civil complaint filed in forma pauperis, 28 U.S.C. § 1915(e)(2), or
brought by a prisoner-plaintiff seeking redress against government entities or officer or
employee of a governmental entity, 28 U.S.C. § 1915A. Under Sections 1915A(b)(1)

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and 1915(e)(2)(B), a district court must screen and dismiss complaints that are
frivolous, malicious, or fail to state a claim upon which relief may be granted. The
standard of review under these two statutes is the same standard used to evaluate
dismissals under Federal Rule of Civil Procedure 12(b)(6):
A prisoner's pro se complaint is to be read liberally, Stanley v. Vining, 602
F.3d 767, 771 (6th Cir. 2010), and when judging the sufficiency of a
complaint, this court “accept[s] as true all non-conclusory allegations in the
complaint and determine[s] whether they state a plausible claim for relief.”
Delay v. Rosenthal Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir.
2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50,
173 L.Ed.2d 868 (2009)).
Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
The Magistrate Judge concluded that the following claims should be dismissed
for failure to state a claim upon which relief may be granted: (1) claims against
Defendants Anthony Cadogan and Rossena Clagg in Plaintiff's first cause of action; (2)
the claims alleged in Plaintiff's second cause of action, except for the claims brought
against the "John/Jane Doe" defendant who allegedly exposed plaintiff to a harmful
chemical substance on July 2, 2015 and the "John/Jane Doe" defendants who allegedly
refused to provide medical treatment for injuries suffered in that incident; and (3)
Plaintiff's third cause of action. The Magistrate Judge also concluded that the following
named defendants should be dismissed from this action: Mr. Holdren of SOCF’s Safety
and Sanitations Department; Anthony Cadogan, SOCF’s Deputy Warden of Special
Services; Rossena Clagg, SOCF’s Health Care Administrator; Mrs. Mahlman, SOCF’s
Institutional Inspector; Mr. Roger Wilson ODRC’s Chief Inspector; and Mr. Eugene
Hunyadi, ODRC’s Assistant Chief Inspector.

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Plaintiff objects, explaining that Holdren, Cadogan, Clagg, Mahlman, Wilson and
Hunyadi are “responsible parties, either directly involved in the participations or as
condoning supervising official with whom knowingly allowed the unconstitutional
transgressions to transpire as stipulated in complaint assertions.” (Doc. 7, PAGEID #
85). Plaintiff explains that he possesses “a substantial amount of documents to provide
undisputed verifications to defendants involvements to which is asserted in complaint.”
(Id.) Plaintiff explains further that “discovery in this matter will provide a substantial
amount of credible evidence and verification to show and support listed Defendants’
culpability that would justify the parties listings.” (Id., PAGEID # 86).
The Court finds no error in the Magistrate Judge’s conclusion that the claims
against Cadogan and Clagg should be dismissed. “Supervisory liability under § 1983
cannot be based upon a mere failure to act but must be based upon active
unconstitutional behavior.” Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002). “In
other words, a supervisor cannot be held liable simply because he or she was charged
with overseeing a subordinate who violated the constitutional rights of another.
Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (citing Gregory v. City of
Louisville, 444 F.3d 725, 751 (6th Cir. 2006)). For supervisory liability to attach, a
plaintiff must allege “at a minimum” that the defendant “at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers.” Id. (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Plaintiff’s
conclusory allegation that Cadogan and Clagg were directly involved or knowingly
allowed the unconstitutional conduct to occur are insufficient to establish supervisory
liability.

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Similarly, the Court finds no error in the Magistrate Judge’s conclusion that
Plaintiff’s second cause of action should be dismissed to the extent that Plaintiff claims
“John/Jane Doe” defendants exposed him to a harmful chemical substance in retaliation
for a lawsuit Plaintiff brought against Clagg.

Plaintiff’s conclusory allegations are

insufficient to establish that Clagg implicitly authorized, approved, or knowingly
acquiesced in the alleged unconstitutional conduct.
As to the third cause of action, the Court finds no error in the Magistrate Judge’s
conclusion that Plaintiff fails to state a claim based upon restrictions on his use of prison
grievance procedures. “[T]here is no constitutionally protected due process right to
unfettered access to prison grievance procedures.” Walker v. Michigan Dep't of Corr.,
128 F. App'x 441, 445 (6th Cir. 2005). Because Plaintiff has not alleged a violation of a
constitutional right, he has not stated a claim under § 1983 in his third cause of action.
III. CONCLUSION
Based on the foregoing, the Magistrate Judge’s May 3, 2016 Report and
Recommendation (“R&R”) is ADOPTED. Accordingly, Plaintiff may proceed with the
following claims: his first cause of action to the extent that Plaintiff has alleged a claim
against Defendant Dr. Ahmed based on the failure to treat a broken bone and infection
in Plaintiff's right hand, as well as a claim against Dr. Ahmed and unidentified
"John/Jane Doe" defendants for assaulting Plaintiff during a medical examination on
March 9, 2015; his second cause of action to the extent that Plaintiff has alleged claims
against a "John/Jane Doe" defendant for committing a retaliatory act by exposing
Plaintiff to a harmful chemical substance on July 2, 2015, and against "John/Jane Doe"
defendants who allegedly refused to provide medical treatment for injuries suffered in

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that incident; and his fourth cause of action for alleged "U.S. mail tamperings and
obstructions," which has been brought against Defendants Cool, Frazie, Whittman,
Mead, Satterfield, and "other unidentified state officials."
IT IS SO ORDERED.

/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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