Bloodworth v. Doe et al

Filing 23

ORDER overruling as moot 12 Objections and overruling 16 and 22 Objections and adopting Report and Recommendations re 9 , 14 and 18 Report and Recommendations denying 15 Motion to Appoint Counsel, denying 20 Motion for Waiver, denying 21 Motion to Amend/Correct. Signed by Judge Michael R. Barrett on 9/17/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION CINCINNATI
PHILLIP J. BLOODWORTH,
Plaintiff,
Case No.1:17-CV-00450-MRB
vs.
Barrett, J.
Bowman, M.J.

JOHN DOE, ET AL.,
Defendants.
ORDER

This matter is before the Court on Plaintiff’s objections (Docs. 12, 15) to the magistrate
judge’s reports (Docs. 9, 14) recommending dismissal of Plaintiff’s original complaint and
amended complaint. This Order also addresses Plaintiff’s most recent set of objections (Doc.
22), which were received after the Court adopted the magistrate judge’s August 16, 2018 report
and recommendation. (Doc. 18).
I.

BACKGROUND
The magistrate judge summarized Plaintiff’s factual allegations (Docs. 9, 14), which will

not be restated here except as necessary to address Plaintiff’s objections.
On June 29, 2017, Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF),
filed an unsigned pro se civil rights complaint against Defendants John Doe Chief Inspector, Warden
Erdos, Inspector Mahlman, Major Warren, ADA Coordinator Memmert, HCA Warren, Lt. Setty, Sgt.
McCroskey, C/O Cooper, Optometrist Shoemaker, and Doctor Eddy in their individual capacities.
(Doc. 1). On July 6, 2017, the magistrate judge entered a deficiency order, requiring Plaintiff to sign
his complaint. (Doc. 2). On July 31, 2017, Plaintiff filed a signed version of his complaint. (Doc. 6).
On September 19, 2017, the magistrate judge sua sponte recommended that the complaint be

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dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). (Doc. 9). On

September 29, 2017, Plaintiff filed objections to the foregoing recommendation. (Doc. 12).
On July 24, 2018, the magistrate judge granted Plaintiff leave to file an amended complaint,
but concurrently recommended that the amended complaint also be dismissed with prejudice. (Doc.
14). On August 10, 2018, Plaintiff filed objections to the foregoing recommendation. (Doc. 16).
On August 10, 2018, Plaintiff also sought leave to file a second amended complaint. (Doc.
17). On August 16, 2018, the magistrate judge recommended that the motion be denied. (Doc. 18).
The objection deadline was September 4, 2018. On September 6, 2018, the Court adopted the
August 16, 2018 report and recommendation because it had not received objections to the same.
(Doc. 19). On September 12, 2018, the Court received and docketed Plaintiff’s objections (Doc. 22)
to the August 16, 2018 report and recommendation. Plaintiff’s certificate of service states that he
mailed his objections on September 3, 2018; however, the objections bear a September 5, 2018
postmark. (See Doc. 22-1).

II.

ANALYSIS
Plaintiff’s original, signed complaint (Doc. 6) was superseded on July 24, 2018 by his

amended complaint (Doc. 13). Accordingly, Plaintiff’s first set of objections (Doc. 12) to the
original complaint’s recommended dismissal is OVERRULED AS MOOT.
A. Objections to August 10, 2018 R&R (Doc. 15)
Because Plaintiff’s first set of objections (Doc. 12) is moot, the Court will address the
merits of Plaintiff’s August 10, 2018 objections (Doc. 15) to the recommended dismissal of his
amended complaint. Although Plaintiff does not identify specific objections to the magistrate
judge’s proposed findings and recommendations, as required under Fed. R. Civ. P. 72, he
generally argues: (1) the magistrate judge erred in deeming Defendants entitled to immunity for
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any alleged violation of his constitutional rights; and (2) the magistrate judge erred in rejecting
his ADA claim, because she erroneously rejected the existence of his disability. Neither
objection is well taken.
First, the magistrate judge was correct to recommend dismissal of the constitutional
claims on the basis of immunity. In sum, Plaintiff’s amended complaint changed theories to
argue that Defendants were liable in their official capacities because they deprived him of his
contact lenses without due process of law. (Doc. 14, PageID 119). The Court agrees that a suit
against Defendants in their respective “official capacities would, in reality, be a way of pleading the
action against the entity of which defendants are agents”—i.e., the State of Ohio. Monell, 436 U.S.
at 690. Plaintiff’s allegations, accepted as true, do not defeat the immunity of the State of Ohio.
Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009) (“[A]n official-capacity suit against a state
official is deemed to be a suit against the state and is thus barred by the Eleventh Amendment, absent
a waiver.” (citation and ellipsis omitted)). 1
Second, the magistrate judge correctly rejected Plaintiff’s ADA claim. Contrary to Plaintiff’s
objections, the magistrate judge never denied the existence of a disability. Rather, the magistrate
judge concluded that, in “the absence of any allegation that plaintiff was discriminated against on the
basis of a disability, his complaint fails to state a claim upon which relief may be granted under the
ADA and should be dismissed.” (Doc. 14, PageID 121). The undersigned agrees. To the extent that

Furthermore, Plaintiff’s apparent desire to add ODRC, SOCF, and/or Scioto County as parties
(Doc. 22, PageID 159) would not cure his pleading deficiencies. ODRC and SOCF are not
proper parties for the reasons articulated by the magistrate judge (Doc. 18, PageID 150).
Furthermore, a claim against Scioto County cannot succeed. To prevail against Scioto County,
Plaintiff must allege that his injuries “were the result of an unconstitutional policy or custom of
the County." Mockbee v. Scioto Cty. Adult Parole Auths., No. 1:17-cv-254, 2017 U.S. Dist.
LEXIS 77416, at *8 (S.D. Ohio May 22, 2017) (emphasis added). As an inmate at an ODRC-run
facility, Plaintiff has not identified any county policy that would subject Scioto County to suit
under § 1983. Id.
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plaintiff claims he was wrongly denied contact lenses, his allegation does not provide a basis for
relief under the ADA. See Watson v. Mohr, 2:17-cv-457, 2017 WL 6383812, at *5 (S.D. Ohio Dec.
14, 2017) (Report and Recommendation) (finding that a plaintiff failed to state a claim for relief
under the ADA for the denial of medical treatment where the claim was merely an Eighth
Amendment deliberate indifference claim in another statutory guise, noting that “[n]either medical
treatment decisions nor medical malpractice . . . may form the basis of a claim under the ADA”). See
also Simmons v. Navajo Cty., 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA prohibits
discrimination because of disability, not inadequate treatment for disability.”); Bryant v. Madigan, 84
F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s simply failing to attend
to the medical needs of its disabled prisoners. . . . The ADA does not create a remedy for medical
malpractice.”).

B. Plaintiff’s Filings of September 12, 2018 (Docs. 20-22)
After the Court adopted the August 16, 2018 report and recommendation, Plaintiff filed two
motions: (1) a Motion Requesting Defendants Waive 11th Amendment Rights (Doc. 20); and (2)
Motion to Alter Amended Complaint (Doc. 21). On September 12, 2018, the Court also received and
docketed Plaintiff’s objections to the August 16, 2018 report and recommendation.
Neither motion is well taken. The motion requesting waiver (Doc. 20) has no basis in the
Federal Rules of Civil Procedure, and the motion to amend (Doc. 21) offers no information or
arguments assuaging the Court’s futility concerns.
Furthermore, considering the merits of Plaintiff’s most recent objections (Doc. 22) – despite
their debatable timeliness – the Court’s position remains the same. The objections challenge the
magistrate judge’s conclusions regarding: (1) municipal/state liability for allegedly destroying
Plaintiff’s contact lenses (Doc. 22, PageID 160); (2) disability discrimination (id. at 162); and (3)

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Plaintiff’s entitlement to court-appointed counsel (id. at 159, 160-162). Plaintiff’s first two
objections are covered by the Court’s analysis in Section II.A, supra. Plaintiff’s third objection is not
well taken, as he is not entitled to the appointment of counsel in a civil case. Plaintiff has failed to
demonstrate the type of exceptional circumstances that would justify the rare appointment of free
counsel for a pro se civil litigant. Lavado v. Keohane, 992 F.2d 601, 605 606 (6th Cir. 1993).
III.

CONCLUSION

Therefore, consistent with the above, the Court:
(1) OVERRULES AS MOOT Plaintiff’s September 29, 2017 Objections (Doc. 12);
(2) OVERRULES Plaintiff’s August 10, 2018 objections (Doc. 16);
(3) OVERRULES Plaintiff’s September 12, 2018 objections (Doc. 22);
(4) ADOPTS each report and recommendation of the magistrate judge (Doc. 9.; Doc. 14; Doc.
18);
(5) DENIES Plaintiff’s motion to appoint counsel (Doc. 15); and
(6) DENIES Plaintiff’s recent motions for waiver (Doc. 20) and to amend (Doc. 21).
Accordingly, this case is closed and terminated from the docket of this Court. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of this Order would not
be taken in good faith, and therefore denies Plaintiff leave to appeal in forma pauperis.

IT IS SO ORDERED.
______________________
s/Michael R. Barrett
United States District Judge

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