Bloodworth v. Timmerman-Cooper et al

Filing 83

REPORT AND RECOMMENDATION re 70 motion to dismiss for failure to state a claim be GRANTED. Objections to R&R due by 12/3/2012. Signed by Magistrate Judge Norah McCann King on 11/16/12. (rew)

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

RONALD BLOODWORTH,
Plaintiff,
vs.

Civil Action 2:10-CV-1122
Judge Marbley
Magistrate Judge King

DEBORA A. TIMMERMAN-COOPER,
WARDEN, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state inmate formerly incarcerated at the London
Correctional Institution (“LoCI”), brings this civil rights action
under 42 U.S.C. § 1983.

This matter is before the Court on Defendant

William Bierbaugh’s Motion to Dismiss (“Bierbaugh’s Motion to
Dismiss”), Doc. No. 70.
Dismiss.

Plaintiff opposes Bierbaugh’s Motion to

Plaintiff’s Opposition to Defendant Bierbaugh’s Motion to

Dismiss (“Plaintiff’s Response”), Doc. No. 81.
has not filed a reply.

Defendant Bierbaugh

For the reasons that follow, it is RECOMMENDED

that Bierbaugh’s Motion to Dismiss be GRANTED.
Plaintiff’s Third Amended Complaint, Doc. No. 34, alleges three
categories of misconduct by various employees at LoCI.

First,

plaintiff alleges that employees of LoCI engaged in secret
surveillance of his activities.

Id. (counts I, II, III).

Second, he

alleges that employees of LoCI improperly examined and tampered with
his mail and communications.

Id. (counts IV, V, VI, VII, IX, X).

1

Third, he alleges that employees of LoCI prohibited him from entering
the dining facility in retaliation for his filing of grievances.
(count VIII).

Id.

On August 28, 2012, the Court dismissed counts I, II,

III, VIII and X of the Third Amended Complaint for failure to state a
claim.

See Order, Doc. No. 71, p. 2.

Defendant Bierbaugh now moves to dismiss plaintiff’s claims under
Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim
upon which relief can be granted.

Motion to Dismiss, p. 1.

A motion to dismiss under Rule 12(b)(6) attacks the legal
sufficiency of the complaint.

See Roth Steel Prods. v. Sharon Steel

Co., 705 F.2d 134, 155 (6th Cir. 1983).

In determining whether

dismissal on this basis is appropriate, a complaint must be construed
in the light most favorable to the plaintiff, and all well-pleaded
facts must be accepted as true.

See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.
Supp. 734, 738 (S.D. Ohio 1994).

The United States Supreme Court has

explained that “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations
in the complaint.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”

Id. at 555.

“Factual allegations

must be enough to raise a right to relief above the speculative
level[.]”

Id.

Accordingly, 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.

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Bierbaugh’s Motion to Dismiss argues that the Third Amended
Complaint should be dismissed, as against defendant Bierbaugh, because
it contains no factual allegations against this defendant. Bierbaugh’s
Motion to Dismiss, pp. 1, 3.

Plaintiff does not contest that there

are no factual allegations against defendant Bierbaugh.

Rather,

plaintiff argues that it would be improper to dismiss the claims
against defendant Bierbaugh prior to plaintiff’s identification of the
John Doe defendants.

See Plaintiff’s Response, pp. 2-4.

The identification of the John Doe defendants has no bearing on
whether plaintiff has stated a claim against defendant Bierbaugh.
Defendant Bierbaugh is a named defendant; plaintiff does not, as he
contends, see id. at p. 5, need discovery to reveal Bierbaugh’s
“identity.”

The Third Amended Complaint contains no factual

allegations whatsoever against defendant Bierbaugh,1 let alone facts
sufficient to state a colorable claim against him.
It is therefore RECOMMENDED that Defendant William Bierbaugh’s
Motion to Dismiss, Doc. No. 70, 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); Fed. 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

1

The only reference to defendant Bierbaugh in the Third Amended
Complaint is an allegation that he is employed as a corrections officer at
LoCI. Third Amended Complaint, p. 9.

3

thereof.

Fed. 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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

November 16, 2012

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

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