Enyart v. Karnes et al

Filing 130

REPORT AND RECOMMENDATIONS that 114 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 9/19/2011. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

SHERIFF JIM KARNES, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 alleging that he
was denied due process while detained in the Franklin County Jail.
This matter is now before the Court on Defendant Mandy Miller’s Motion
to Dismiss, Doc. No. 114 (“Motion to Dismiss”).

For the reasons that

follow, it is RECOMMENDED that the Motion to Dismiss be GRANTED.
I.

BACKGROUND
Plaintiff alleges that, on August 11, 2007, he was arrested by

the Columbus Police for “pandering and voyeurism”1 and taken to
Franklin County Corrections Center I (“FCCCI”).
Doc. No. 76, ¶¶ 10-11.

Amended Complaint,

After spending the night in a holding cell,

plaintiff alleges, he was moved to the fifth floor.

Id. at ¶¶ 11-12.

While he was held as a pre-trial detainee on the fifth floor,
defendant Deputy Daniel Waldren “yelled out my [plaintiff’s] name and
said ‘the media wants to interview you about those little kids you

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Plaintiff’s alleged crimes apparently involved sex crimes against
children. See Amended Complaint, ¶¶ 11-13, 26, 27.

molested.’”

Id. at ¶ 13.

Plaintiff alleges that, after plaintiff

declined the media request and the deputy left the area, nine of the
ten inmates sharing plaintiff’s cell attacked him.

Id.

After

defendant Waldren and defendant deputy Daniel Thacker returned to the
cell and left again, he was attacked a second time.

Id.

Shortly

thereafter, the two defendant deputies returned to the cell and took
plaintiff to the infirmary.

Id.

Photos of plaintiff’s injuries were

taken at the infirmary and he was then taken to the hospital and
treated for injuries.

Id. at ¶¶ 14-16.

A few weeks after the alleged

assault, plaintiff attempted to file a grievance.

Id. at ¶¶ 17-18.

According to plaintiff, he attempted to utilize the grievance process
three times, but his attempts were “ignored.”

Id.

On July 7, 2011, defendant Miller filed the Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6).2
Dismiss.

Plaintiff opposes the Motion to

See Plaintiff’s Opposition to Miller’s Motion to Dismiss,

Doc. No. 124 (“Memo. in Opp.”).
II.

STANDARD
A motion to dismiss under Rule 12(b)(6) attacks the legal

sufficiency of the complaint.

Riddle v. Egensperger, 266 F.3d 542,

550-51 (6th Cir. 2001); Carter v. Welles-Bowen Realty, Inc., 493
F.Supp. 2d 921, 923 (S.D. Ohio 2007).

In considering a motion to

dismiss under the provisions of Fed. R. Civ. P. 12(b)(6), a court must
construe the complaint in the light most favorable to the plaintiff,

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After it became apparent that the Marshal’s service of process had not
been effective as to defendant Miller, the Court directed the Clerk to effect
service by ordinary mail. Order and Report and Recommendation, Doc. No. 96.
Defendant Miller concedes that that service was effective . Motion to
Dismiss, p. 2.

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accept all factual allegations as true, and determine whether the
complaint contains “enough facts to state a claim to relief that is
plausible on its face.”
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

Under general pleading standards, the facts alleged in the

complaint need not be detailed, although “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of a cause of
action’s elements will not do.”

Id. at 555 (alteration in original).

A complaint must be dismissed if it does not plead “enough facts to
state a claim to relief that is plausible on its face.”

Id. at 570.

However, “[w]hen there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1950 (2009).
In this case, plaintiff is proceeding without the assistance of
counsel.

A pro se litigant’s pleadings should be construed liberally

and held to a less stringent standard than are formal pleadings
drafted by lawyers.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, this duty does not “transform the courts from neutral
arbiters of disputes into advocates for a particular party.”

Young

Bok Song v. Gipson, No. 09-5480, 2011 U.S. App. LEXIS 9867, at *11
(6th Cir. May 12, 2011).
III. DISCUSSION
Plaintiff grounds his claims on 42 U.S.C. § 1983, which provides
that “[e]very person who, under color of any statute, ordinance,
regulation, custom or usage of any state . . . subjects or causes to
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be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges or immunities secured by the
Constitution and laws” shall be liable to the injured party.

This

statute “‘is not itself a source of substantive rights,’ but merely
provides ‘a method for vindicating federal rights elsewhere
conferred.’”

Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).

In order to

recover under § 1983, a plaintiff must prove that the defendant, while
acting under color of state law, violated rights secured by the
Constitution or laws of the United States.

See Adickes v. S.H. Kress

& Co., 398 U.S. 144, 150 (1970).
Plaintiff has sued defendant Miller in both her individual and
official capacities.

Amended Complaint, ¶ 8.

A claim brought against

a government employee in his or her individual capacity seeks to hold
the employee personally liable for actions taken under color of state
law. Kentucky v. Graham, 473 U.S. 159 (1985).

However, a claim

brought against a government employee in his or her official capacity
is the equivalent of a claim brought against the governmental entity
itself.

Id. at 165-66.

The Court will first turn to the individual

capacity claim.
A.

Individual Capacity

“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.”

Grinter v. Knight, 532 F.3d

567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun County, 408 F.3d
803, 817 n.3 (6th Cir. 2005) (internal quotation marks omitted)).

“At

a minimum, a § 1983 plaintiff must show that a supervisory official at
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least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.”

Id. (quoting

Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (internal
quotation marks omitted)).

Thus, liability on the part of a

supervisor must be based on “active unconstitutional behavior.”

Combs

v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002) (citing Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
Here, plaintiff alleges that defendant Miller supervised
defendants Waldren and Thacker.

Amended Complaint, ¶ 5.

Plaintiff

further alleges that, after defendants Waldren and Thacker brought
plaintiff to the infirmary following the attack, defendant Miller
advised plaintiff of his rights:
Corporal Mandy Miller at the infirmary was visibly angry at
the two deputies [Waldren and Thacker]. She asked if I
wanted to go to the hospital and I said yes. . . . Corporal
Mandy Miller then informed me about protective custody and
said, “You should have been put there from the start,” and
asked if I wanted to go there after I returned from the
hospital. I said I did, and she told me the specific
wording to write as I filled out the form to request
protective custody.
Amended Complaint, ¶ 14.

Stated differently, plaintiff simply alleges

that defendant Miller is a supervisor, that she advised plaintiff that
he had the right to seek protective custody and that she assisted
plaintiff in requesting protective custody.

Accepting these

allegations as true, they are insufficient to establish active
unconstitutional behavior on the part of this defendant and therefore
do not plausibly give rise to an entitlement to relief against her.
See Ashcroft v. Iqbal; 129 S.Ct. at 1950; Combs, 315. F.3d at 554.
In opposing the Motion to Dismiss, plaintiff first contends that,
as a pro se litigant, the Court should construe his Amended Complaint
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liberally, suggesting that his claims will then withstand the Motion
to Dismiss.

Memo. in Opp., pp. 1-3. However, even construing

plaintiff’s allegations liberally, the Court still concludes that
plaintiff has failed to state a claim against defendant Miller in her
individual capacity.

Moreover, construing plaintiff’s allegations

liberally “does not mean . . .that pro se plaintiffs are entitled to
take every case to trial.” Ashiegbu v. Purviance, 74 F. Supp.2d 740,
746 (S.D. Ohio 1998) (citing Pilgrim v. Littlefield, 92 F.3d 413, 416
(6th Cir. 1996)).

“Indeed, courts should not assume the role of

advocate for the pro se litigant.”

Id. (citing Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991)).
Plaintiff next refers to documents that were attached to his
memorandum opposing former defendant Sheriff Jim Karnes’s motion for
summary judgment, arguing that defendant Miller could have prevented
the incident had she taken certain action.
(citing Doc. No. 58).

Memo. in Opp., pp. 3-4

He also contends that defendant Miller “failed

to pursue a meaningful investigation” and that “[i]t is reasonable to
infer that Miller was involved in the set-up, and obvious from the
evidence that she was part of the cover-up.”
This Court disagrees.

Id. at 3, 5, 10.

The Motion to Dismiss requires the Court

to review the sufficiency of the allegations contained in the Amended
Complaint. To the extent that this Court construes the Memo. in Opp.
as a request for leave to amend the Amended Complaint, such request is
not well-taken.

Generally, leave to amend a complaint shall be freely

granted “when justice so requires.”

Fed. R. Civ. P. 15(a).

However,

“[i]n deciding whether to allow an amendment, the court should
consider the delay in filing, the lack of notice to the opposing
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party, bad faith by the moving party, repeated failure to cure
deficiencies by previous amendments, undue prejudice to the opposing
party, and futility of amendment.”

Perkins v. Am. Elec. Power Fuel

Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001).

Here, plaintiff’s

request comes more than two years after this action was filed.
Throughout this litigation, plaintiff has had ample opportunity to
amend his complaint; indeed, plaintiff has been granted leave to do so
on at least three prior occasions.

See Order, Doc. No. 13; Order,

Doc. No. 25; Order and Report and Recommendation, Doc. No. 69.

At no

point during that process did plaintiff seek to include the
allegations that he now raises against defendant Miller in the Memo.
in Opp.

Moreover, there is no explanation as to why plaintiff was

unable to articulate these allegations in his previous amendments.
Indeed, plaintiff concedes that he knew of the underlying information
more than a year ago when he filed his memorandum in opposition to
defendant Karnes’s motion for summary judgment.

Memo. in Opp., pp. 3-

4 (citing Doc. No. 58, which was filed on August 16, 2010).

Where

plaintiff has repeatedly failed to cure these deficiencies, his delay
is unreasonable.

Under these circumstances, to permit plaintiff to

amend his complaint yet once again at this late stage would unfairly
prejudice defendant Miller.
Accordingly, the Court concludes that plaintiff has failed to
allege any specific unconstitutional behavior on the part of defendant
Miller and, as it relates to plaintiff’s individual capacity claim
against her, the Motion to Dismiss is meritorious.
B.

Official Capacity

Plaintiff has also sued defendant Miller in her official
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capacity.

As noted supra, a claim brought against a government

employee in his or her official capacity is the equivalent of a claim
brought against the governmental entity itself, in this case, Franklin
County.

However, claims against Franklin County have already been

considered and rejected by the Court.

See, e.g., Report and

Recommendation, Doc. No. 82; Opinion and Order, Doc. No. 92; Order and
Report and Recommendation, Doc. No. 96; Order, Doc. No. 112.

For the

reasons stated in those prior decisions, the Motion to Dismiss claims
against defendant Miller in her official capacity, tantamount to
claims against Franklin County, is meritorious.
WHEREUPON, it is RECOMMENDED that Defendant Mandy Miller’s Motion
to Dismiss, Doc. No. 114, be GRANTED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

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Response to objections must be

filed within fourteen (14) days after being served with a copy
thereof.

F.R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation
of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

8

States v. Walters,

September 19, 2011

638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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