Leonard v. State of Ohio et al
Filing
28
REPORT AND RECOMMENDATIONS that 21 MOTION for Judgment on the Pleadings filed by defendants be denied as it relates to the claims against defendant Dr. Obregon and granted as it relates to the claims against all other defendants - objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 08/23/2011. (sr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ronald D. Leonard,
:
Plaintiff,
State of Ohio, et al.,
Defendants.
Case No. 2:09-cv-950
:
v.
:
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
:
:
REPORT AND RECOMMENDATION
Plaintiff, Ronald D. Leonard, a state prisoner confined at
the Chillicothe Correctional Institution, filed this action under
42 U.S.C. §1983 against the State of Ohio, the Ohio Department of
Rehabilitation and Correction - Department of Medical Services,
and three individual defendants, Dr. Obregon, “Nurse Gary,” and
nurse Tim Gardner.
He subsequently amended his complaint by
dismissing the claims against “Nurse Gary,” whom he identified as
nurse Gary Canterbury, and substituting as a defendant nurse
Raymond Kimes.
In his complaint, Mr. Leonard claimed that when
Dr. Obregon examined him on August 3, 2009, he exhibited
deliberate indifference to Mr. Leonard’s serious medical needs by
refusing to refer him to an orthopedic specialist for treatment
of a back injury.
He also claims that the institution’s
practitioner nurses were unable to treat his back injury
effectively and were also deliberately indifferent to his serious
medical needs.
On December 29, 2010, all defendants moved for judgment on
the pleadings.
motion.
Initially, Mr. Leonard did not respond to the
After being warned that his failure to respond might
result in the dismissal of his case for failure to prosecute, Mr.
Leonard filed an opposing memorandum on May 5, 2011.
The
defendants filed a reply memorandum on May 11, 2011, and the
matter is ready to decide.
For the following reasons, it will be
recommended that the motion be granted in part and denied in
part.
I.
A motion for judgment on the pleadings attacks the
sufficiency of the pleadings and is evaluated under the same
standard as a motion to dismiss.
Amersbach v. City of Cleveland,
598 F.2d 1033, 1038 (6th Cir. 1979).
In ruling upon such a
motion, the Court must accept as true all well-pleaded material
allegations of the pleadings of the opposing party, and the
motion may be granted only if the moving party is nevertheless
clearly entitled to judgment.
Southern Ohio Bank v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.
1973).
The new pleading standards articulated in Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007) apply with equal force to motions for judgment on the
pleadings.
See, e.g., Schwab v. Smalls, 2011 WL 3156530 (2d Cir.
July 27, 2011).
Those cases make clear that in order to survive
such a motion, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face."
550 U.S. at 570.
Bell Atlantic, ,
Further, the Court must disregard statements of
legal conclusions and look only to the well-pleaded facts of the
complaint in order to determine its legal sufficiency.
It is
with these standards in mind that the motion for judgment on the
pleadings must be decided.
II.
In their motion, defendants raise three arguments.
First,
the individual defendants assert that each of them has been sued
in his official capacity, and that such claims, as well as damage
claims against the Department of Rehabilitation and Correction,
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are barred by the Eleventh Amendment to the United States
Constitution.
Second, they argue that Dr. Obregon cannot be held
liable for any unconstitutional conduct attributed to the other
two defendants because, as a supervisor, he is not responsible
for the acts of his agents, at least with respect to claims
brought under §1983.
Third, they argue that the complaint does
not allege a proper Eighth Amendment claim because it does not
contain enough factual allegations concerning whether any of the
defendants deliberately disregarded a known risk to Mr. Leonard’s
health.
They note that the complaint does not allege that any of
the defendants were actually aware that he had a back injury or
were either aware of or, or recklessly indifferent to, the
possibility that their failure to refer him to an orthopedic
specialist might cause him to suffer further injury.
In response, Mr. Leonard argues, first, that in his amended
complaint, he specifically averred that all defendants were being
sued in their official and individual capacities.
Second, he
argues, based upon facts not contained in his complaint, that he
was expelled from the first medical examination even though prior
medical documents from Riverside Methodist Hospital showed that
he had a lower back condition, and that Dr. Obregon refused even
to give him a cane to help him walk back to his dormitory.
Lastly, he asserts that defendant Kimes purported to be a doctor
and examined and treated him under false pretenses, and that this
type of misconduct is both illegal and constitutes deliberate
indifference.
In reply, defendants deny that the amended
complaint makes any allegations concerning the capacities in
which they have been sued, and they reassert their argument that
the complaint is too short on details to state a viable Eighth
Amendment claim.
III.
The Eleventh Amendment to the United States Constitution
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bars suits against either a state or agencies of a state by
citizens of that state.
Edelman v. Jordan, 415 U.S. 651 (1974).
Under certain circumstances, a suit against an individual state
official may nonetheless be deemed to be a suit against the state
and therefore barred by the Eleventh Amendment.
The primary test
for determining whether the state is the real party in interest
in a suit is whether the source of any funds from which a damage
award would be paid would be the state treasury.
Edelman, supra.
Additionally, if an individual is alleged to have only vicarious
liability as a result of his official position, any damage award
made (if one were permissible) would necessarily be against the
office rather than the officeholder and therefore be an award
against the state.
See Ford Motor Co. v. Department of the
Treasury, 323 U.S. 459 (1945); see also Hall v. Medical College
of Ohio, 742 F.2d 299 (6th Cir. 1984), cert. denied 469 U.S. 1113
(1985).
When a suit is barred by the Eleventh Amendment, the
Court lacks jurisdiction over it and it must be dismissed without
prejudice.
Cf. Gwinn Area Comm. Schools v. State of Michigan,
741 F.2d 840, 846-47 (6th Cir. 1984).
The defendants are clearly correct that to the extent Mr.
Leonard has asserted a claim against either the State of Ohio,
the Ohio Department of Rehabilitation and Correction, or some arm
of that a latter entity, such as its Medical Services Department,
any such claim is barred by the 11th amendment.
The State of
Ohio and its agencies may not be sued in federal court for
monetary damages, and Mr. Leonard has presented no contrary
argument in his opposing memorandum.
Therefore, the entity
defendants are entitled to dismissal.
The question of whether Mr. Leonard’s claims against the
three individual defendants are also barred by Eleventh Amendment
immunity is much closer.
In his original complaint, Mr. Leonard
states that the acts, omissions, and misconduct about which he
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complains were performed by the defendants in their official
capacities.
Although he claims to have clarified this allegation
in his amended complaint, the amended complaint on file with the
Court, which consists of a single page with no caption, makes no
mention of the capacity in which the new defendant or any of the
prior defendants were sued.
On the other hand, Mr. Leonard makes
it clear in his initial complaint that he seeks an award of
monetary damages against all defendants.
The reference to the defendants having acted in their
official capacities, which appears twice on the first page of the
complaint, is somewhat troubling.
However, there is some
conceptual difference between asserting that a state defendant
acted in that capacity, which might be construed simply as an
allegation that the defendant acted under color of state law and
clothed with the authority of his or her office, and stating
specifically that the defendant is being sued only in his or her
individual capacity.
Cf. Hafer v. Melo, 502 U.S. 21 (1991).
Moreover, when a complaint is either silent or ambiguous about
the capacity in which a defendant has been said, the Court is
required to use a “course of proceedings” test to determine
whether the claims are barred by 11th amendment immunity.
Moore
v. City
(en banc).
of
Harriman,
See
272 F.3d 769, 772 (6th Cir.2001)
As another magistrate judge of this court noted in
Nellum v. Harris, 2009 WL 5218055, *3 (S.D. Ohio December 31,
2009), this test looks beyond the complaint itself to the nature
of the claim, whether compensatory or punitive damages have been
requested, and even to documents such as a response to a casedispositive motion.
Using that test, and taking Mr. Leonard’s
response to the motion for judgment on the pleadings into
account, the court cannot conclude that he intended to sue any of
the individual defendants solely in their official capacities.
As a result, they are not entitled to judgment on the pleadings
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on that ground.
IV.
Dr, Obregon also raises an issue about whether the complaint
alleges that he is responsible, legally, for actions of the
institution’s nurses which he did not directly participate in.
Defendants are correct, of course, that 42 U.S.C. §1983 requires
that, in order for any defendant to be liable for damages, the
defendant have personally participated in the allegedly
unconstitutional conduct.
Monell v. Department of Social
Services, 436 U.S. 658 (1978); Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999).
The Court does not read the complaint as
alleging that Dr. Obregon is responsible for anything more than
his own actions, which allegedly consist of failing to treat Mr.
Leonard’s back condition properly on August 3, 2009.
Therefore,
this argument is moot and need not be addressed further.
V.
The last, and most significant, issue raised by the motion
for judgment on the pleadings is whether the complaint sets forth
enough facts - as opposed to conclusory statements of legal
matters - to state a claim under §1983.
In order to decide this
question, it is necessary to review the complaint in some detail
in order to do what the Supreme Court has directed the lower
courts to do when evaluating a complaint - which is to set aside
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” and focus on the
“well-pleaded factual allegations.”
at 1950.
Ashcroft v. Iqbal, 129 S.Ct.
As to the factual allegations, the Court is required to
“assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.”
Id.
If they do not, the
complaint either must be amended to satisfy these pleading
requirements or it must be dismissed.
As it relates to Dr. Obregon, the facts which Mr. Leonard
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has alleged are these.
As noted, he claims that he saw Dr.
Obregon on August 3, 2009, for treatment of his back.
He alleges
that Dr. Obregon failed “to acknowledge [his] pathology,” which
he described as an injury to the lumbar spine, and failed to
refer Mr. Leonard to a qualified medical practitioner, such as a
board-certified orthopedic specialist.
Although not in the
complaint, Mr. Leonard claims, in his memorandum opposing the
motion for judgment on the pleadings (to which he swore under
penalty of perjury) that he was suffering from severe and
excruciating pain on that date due to a prior condition, spinal
stenosis, and that Dr. Obregon, after only a brief examination,
speculated that the pain could be of psychological origin, and
refused to prescribe any treatment at all, including giving Mr.
Leonard a cane to walk back to his dormitory.
When Mr. Leonard
insisted on more treatment, Dr. Obregon threatened him with
disciplinary action.
These facts, if true, state a claim for deliberate
indifference to a serious medical need under the prevailing
Eighth Amendment standard.
To establish an Eighth Amendment
violation, a prisoner must show that he or she has a serious
medical condition and that the defendants displayed a deliberate
indifference to his or her health.
Estelle v. Gamble, 429 U.S.
97 (1976); Wilson v. Seiter, 501 U.S. 294 (1991).
This
formulation has both a subjective and an objective component.
Objectively, the medical condition at issue must be “serious” as
opposed to “trivial,” “minor,” or “insubstantial.”
Subjectively,
the defendants accused of violating the Eighth Amendment must
have acted with a state of mind that can accurately be described
as “deliberate indifference.”
As to the subjective element, in
Farmer v. Brennan, 511 U.S. 825, 839 (1994), the Court adopted
"subjective recklessness as used in the criminal law" as the
appropriate definition for deliberate indifference. It held that
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"a prison official cannot be held liable under the Eighth
Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to
inmate health or safety. . . ." Id. at 837.
Officials must be
aware of facts from which they could conclude that a substantial
risk exists and must actually draw that conclusion.
Id.
Prison
officials who know of a substantial risk to the health or safety
of an inmate are free from liability if "they responded
reasonably to the risk, even if the harm ultimately was not
averted." Id. at 844.
There is no dispute that back conditions which cause severe
pain can qualify as “serious medical needs” which fall within the
scope of the Eighth Amendment.
See, e.g., Jones v. Brunsman,
2010 WL 1133230 (S.D. Ohio March 19, 2010)(back and neck
conditions were serious medical needs); Wood v. Plummer, 2011 WL
2971874 (S.D. Ohio June 27, 2011), adopted and aff’d 2011 WL
2971082 (S.D. Ohio July 21, 2011)(pre-existing back and hip
problems were serious medical needs).
Although Mr. Leonard may
have been somewhat inconsistent in the precise description he has
given for his condition (either a herniated disc or spinal
stenosis), he has alleged that it was diagnosed by proper
techniques and that he was in severe pain when he saw Dr.
Obregon.
He also alleges he told Dr. Obregon about his
conditions but that rather than getting either a suitable
examination or any treatment, he was threatened with discipline
if he did not leave.
These are factual allegations which, if
true (and the Court must accept them at this stage in the case),
satisfy the plausibility standard set forth in Iqbal and Twombly.
Therefore, Dr. Obregon is not entitled to judgment on the
pleadings on this claim, and its ultimate disposition must await
further factual development.
The same cannot be said of the claim against the nurses.
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As
the Court reads the complaint, the only specific allegation made
against them is that one or the other purported to examine Mr.
Leonard as if he were a physician.
This, says Mr. Leonard, is
evidence of unconstitutional conduct all by itself.
That assertion is incorrect.
Even in the context of medical
malpractice actions, care provided by someone who is not a
licensed medical practitioner is not evaluated with reference to
the scope of that person’s legal ability to practice medicine,
but by whether the person violated the standard of care owed to
the patient.
See, e.g., Moreland v. Oak Creek OB/GYN, Inc., 2005
WL 994595 (Montgomery Co. App. April 29, 2005).
Performing
medical services in contravention of state law, such as
dispensing medication without a license, may be a state law claim
of some sort, but it is not a federal constitutional claim, see
Breakiron v. Neal, 166 F.Supp. 2d 1110 (N.D. Tex. 2001), and
state law claims may not be asserted against state employees
absent a finding by the Ohio Court of Claims that the employees
acted manifestly outside the scope of their employment.
Rev. Code §9.86;
See Ohio
Griffin v. Kyle, 2011 WL 2885007 (S.D. Ohio
July 15, 2011), citing Nuovo v. The Ohio State University, 726
F.Supp.2d 829 (S.D. Ohio 2010).
That determination has not been
made here, so any state law claim against the nurse defendants
for practicing medicine without a license is barred by the
immunity conferred on state employees under §9.86.
VI.
For the foregoing reasons, it is recommended that
defendants’ motion for judgment on the pleadings (#21) be denied
as it relates to the claims against defendant Dr. Obregon and
granted as it relates to the claims against all other defendants.
VII.
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
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and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
A judge
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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