Shoulders v. Cherryholmes et al

Filing 27

ORDER adopting Report and Recommendation re 6 Report and Recommendation overruling Plaintiff's objections; the Complaint is dismissed with prejudice with the exception of plaintiff's Eight Amendment failure to protect claims against Cher ryholmes and Rutherford and his First Amendment and excessive force claims against Cherryholmes. Signed by Judge Michael R. Barrett on 8/14/18. (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
Emanuel Shoulders,
Plaintiff,
v.

Case No. 1:17cv703

Z. Cherryholmes, et al.,

Judge Michael R. Barrett

Defendants.
ORDER
This matter is before the Court on the Magistrate Judge’s December 12, 2017
Order and Report and Recommendation (“R&R”). (Doc. 6).
When timely objections to a magistrate judge’s order 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). General objections are insufficient to preserve any
issues for review: “[a] general objection to the entirety of the Magistrate [Judge]’s report
has the same effect as would a failure to object.” Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless, the objections of a petitioner
appearing pro se will be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
On December 27, 2017, Plaintiff filed a “Motion to 12-12-2017 Decision” and
“Memorandum in Support” (Doc. 11), which this Court has construed as objections.

Plaintiff filed a pro se civil rights complaint against Defendants Zachary
Cherryholmes, Jennifer Rutherford, Gary Mohr, and Tom Schweitzer, (Doc. 1-1); and
was granted leave to proceed in forma pauperis. (Doc. 4). Plaintiff alleges a violation
of his First and Eighth Amendment rights, as well as excessive force claims.
In her R&R, the Magistrate Judge ordered that Plaintiff’s Eighth Amendment
claims proceed against Defendants Cherryholmes and Rutherford; and Plaintiff’s First
Amendment and excessive force claims proceed against Defendant Cherryholmes.
However, the Magistrate Judge recommended that all of Plaintiff’s remaining claims be
dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for
failure to state a claim upon which relief may be granted.
Plaintiff objects to the dismissal of the claims against Gary Mohr, Director of the
Department of Corrections and Tom Schweitzer, Warden of Lebanon Correctional
Institution.

However, as the Magistrate Judge explained, Director Mohr or Warden

Schweitzer cannot be held liable under the doctrine of respondeat superior in a civil rights
lawsuit brought pursuant to 42 U.S.C. § 1983 based upon their supervisory positions.
See Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992); Chasteen v. Jackson, No.
1:09-cv-413, 2011 WL 1626537, at *5 (S.D. Ohio Mar. 29, 2011).

Plaintiff makes

several general objections to the dismissal of Mohr and Schweitzer, but also states that
“[t]he law in Ohio imposes a duty of reasonable case upon the state to provide for it’s [sic]
prisoners health care, and well being.” Plaintiff states that these defendants were aware
that “a problem was taking place, and was confronted by the Plaintiff by real evidence,”
but Mohr and Schweitzer “did not act on the law or Policy 5120-9-01, 5120-9-02 and

01-com-08 that allowed these Defendant’s [sic] to remove Cherryholmes from (F) unit
and ect. [sic], and to provide the Plaintiff with a lie box test to establish the truth and these
defendant’s action’s [sic] was not reasonable, or providing for the well being of the
Plaintiff. (Doc. 11, PageID 178). Plaintiff explains he sent a letter to Mohr on August 1,
2017 and a kite to Schweitzer on February 21, 2017. (Id.)
As the Sixth Circuit has explained:
“Because § 1983 liability cannot be imposed under a theory of respondeat
superior, proof of personal involvement is required for a supervisor to incur
personal liability.” Miller v. Calhoun County, 408 F.3d 803, 817 n. 3 (6th
Cir. 2005). “At a minimum, a § 1983 plaintiff must show that a supervisory
official at least implicitly authorized, approved or knowingly acquiesced in
the unconstitutional conduct of the offending subordinate.” Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008). A plaintiff must demonstrate that a
supervisory defendant “did more than play a passive role in the alleged violation or
showed mere tacit approval of the goings on.” Bass v. Robinson, 167 F.3d 1041, 1048
(6th Cir. 1999). Accordingly, supervisory liability cannot be based upon the failure to
act, or simply because a supervisor denied a grievance or failed to act based upon
information contained in a grievance. See Summers v. Leis, 368 F.3d 881, 888 (6th Cir.
2004); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Likewise, merely bringing a
problem to the attention of a supervisory official is not sufficient to impose such liability.
See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D. Mich. 1987), aff'd 849 F.2d 228 (6th
Cir. 1988).
Plaintiff’s allegations do not show that Director Mohr and Warden Schweitzer did
more than play a passive role in the alleged violation. Therefore, the Magistrate Judge

did not err in concluding that Plaintiff’s claims against Director Mohr and Warden
Schweitzer should be dismissed. Accordingly, Plaintiff’s objections are OVERRULED
and the Magistrate Judge’s December 12, 2017 R&R (Doc. 6) is ADOPTED. Plaintiff’s
complaint is DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1), with the exception of plaintiff’s Eighth Amendment failure to protect claims
against defendants Cherryholmes and Rutherford, and his First Amendment and
excessive force claims against Cherryholmes.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge