Hendricks v. Hazzard et al

Filing 59

REPORT AND RECOMMENDATIONS that 48 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted in part and denied in part. It is recommended that the motion be granted as to any claim for damages against the defendants in their official capacities & that it be denied as to any claim for declaratory or injunctive relief against the defendants in their official capacities. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 8/2/2012. (kk2)

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

:

Plaintiff,

Ms. Wessell, et al.,

Case No.

:

v.

:

2:11-cv-399

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION
This matter is before the Court to consider the motion to
dismiss filed by defendants Jeffrey Norman Hazzard, Ms. Wessell,
Ms. Crockett-Harris, and Mary Lawrence.
fully briefed.

The motion has been

For the following reasons, it will be recommended

that the motion to dismiss be granted in part and denied in part.
I. Background
Plaintiff Benjamin Hendricks filed his original complaint in
this action on June 9, 2011, asserting a claim under 42 U.S.C.
§1983 for violations of his First and Eighth Amendment rights
arising from an alleged retaliatory destruction of his legal
materials and alleged use of excessive force.

The original

complaint named as defendants Jeffrey Norman Hazzard, Ms.
Wessell, Lt. John Doe, Ms. Harris, Mary Lawrence, and John/Jane
Doe x25, all in their individual capacities.
motion to dismiss.

Defendants filed a

On December 5, 2011, the Court issued a

Report and Recommendation which recommended that the motion to
dismiss be granted in part and denied in part.

The Report and

Recommendation was affirmed by order dated March 29, 2012.
Accordingly, the motion to dismiss was granted to the extent that
the claims against defendants Wessell, Lt. Doe, Harris and
Lawrence were dismissed.

The state law claims against defendant

Hazzard also were dismissed.
Following the issuance of the Report and Recommendation, but
prior to its adoption, Mr. Hendricks sought leave to amend his
complaint to pursue this action as a class action, to add
allegations regarding a separate incident involving an additional
plaintiff and an additional defendant, to add Ernie Moore, Gary
Mohr, and Rodger Roddy as defendants in their individual and
official capacities, and to sue all defendants in their official
and individual capacities for damages and injunctive relief.

By

order dated February 7, 2012, the Court granted in part and
denied in part Mr. Hendricks’ motion for leave to file an amended
complaint.

In the order, the Court stated that the motion was

granted to the extent that Mr. Hendricks was seeking to sue any
defendants in their official capacities, was seeking injunctive
relief, or seeking to add relevant allegations involving the
alleged incident between Mr. Ingram and Mr. Hill.

The Court

ordered Mr. Hendricks to file an amended complaint that conformed
to the order.
On April 19, 2012, Mr. Hendricks filed the amended complaint
naming as defendants Mr. Hazzard, Ms. Lawrence, Ms. CrockettHarris, Ms. Wessell, Mr. Moore, Mr. Mohr, and Mr. Roddy.

Mr.

Hazzard is named as a defendant in both his individual and
official capacities but all other defendants are named in their
official capacities only.

This amended complaint is the subject

of the current motion to dismiss filed by Mr. Hazzard, Ms.
Lawrence, Ms. Crockett-Harris, and Ms. Wessell.
II.

The Motion to Dismiss

In the motion to dismiss, the defendants argue that, to the
extent Mr. Hendricks’ complaint can be construed as seeking
monetary damages against them in their official capacities, his
claims are barred by the Eleventh Amendment.

On the other hand,

they contend that, to the extent that any claim for injunctive
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relief may be viable under the Ex Parte Young exception, Mr.
Hendricks fails to allege an ongoing violation of federal law.
In response, Mr. Hendricks does not dispute that any claim
for monetary damages against these defendants is barred by the
Eleventh Amendment.

Rather, the focus of Mr. Hendricks’ response

is that he is seeking prospective relief to address an alleged
policy, custom or practice engaged in by the defendants resulting
in a tolerance of abuse inflicted by Mr. Hazzard and others and
that this policy, custom or practice can be demonstrated only
through examples of past conduct.

In support of his position,

Mr. Hendricks relies on two Sixth Circuit cases, Leach v. Shelby
County Sheriff, 891 F.2d 1241 (6th Cir. 1989) and Marchese v.
Lucas, 758 F.2d 181 (6th Cir. 1985).

According to Mr. Hendricks’

reading of these cases, the defendants can be held liable for
their failure to investigate or discipline an officer’s conduct
when such failure equates to a ratification of that conduct.
In reply, the moving defendants contend that Mr. Hendricks
is attempting to “treat [his] official capacity claim as an
individual capacity claim.”

Further, they claim that the cases

relied on by Mr. Hendricks are distinguishable because they
involved claims against county defendants and do not apply to
claims brought against state defendants in an official capacity.
Finally, they reiterate that the only way Mr. Hendricks can
pursue any claim for injunctive relief against them in their
official capacities is if he alleges an ongoing violation of
federal law.

Defendants contend, however, that Mr. Hendricks has

not done that here because he has alleged only isolated incidents
separated by several months.
III.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face."
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Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 569 (2007).

All well-pleaded

factual allegations must be taken as true and be construed most
favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009).

Rule 8(a) admonishes the Court to look only for a “short

and plain statement of the claim,” however, rather than requiring
the pleading of specific facts.

Erickson v. Pardus, 551 U.S. 89

(2007).
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983).

The

merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
to relief.

See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,

702 (6th Cir. 1978).

Rule 12 (b)(6) must be read in conjunction

with Fed. R. Civ. P. 8(a) which provides that a pleading for
relief shall contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."

5A Wright &

Miller, Federal Practice and Procedure § 1356 (1990).

The moving

party is entitled to relief only when the complaint fails to meet
this liberal standard.

Id.

On the other hand, more than bare assertions of legal
conclusions is required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988).

"In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory."
(emphasis in original, quotes omitted).
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Id.

"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
Id. It is with these standards in mind that the motion to dismiss
will be decided.
IV.

Analysis

In his amended complaint, Mr. Hendricks has stated precisely
that he is suing Ms. Lawrence, Ms. Crockett-Harris, and Ms.
Wessell in their official capacities.

This is consistent with

the instructions in the Court’s previous order and is in direct
contrast to allegations in Mr. Hendricks’ previous complaints
where he stated that these defendants were being sued in both
their individual and official capacities.
Doc. #47.

See Doc. #26-1 and

The Court does not construe Mr. Hendricks’ amended

complaint as asserting a claim for personal liability against any
defendants other than Mr. Hazzard despite the defendants’
somewhat lengthy argument to the contrary in their reply.
This is so even though, as defendants note in their motion,
in his allegations of damages and prayer for relief, Mr.
Hendricks appears to seek monetary damages from all defendants.
However, to the extent this language, as defendants suggest, may
be construed as a claim for damages against these defendants in
their official capacities, such a claim clearly is barred by the
Eleventh Amendment.

Will v. Mich. Dep’t. of State Police, 491

U.S. 58, 71 (1989).

Consequently, the motion to dismiss will be

granted to the extent that it is directed to any claims for
monetary damages against these defendants in their official
capacities.
On the other hand, while the Eleventh Amendment generally
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bars suits by citizens of a state against a state in federal
court, there are exceptions to this rule, including an official
capacity suit seeking purely injunctive relief against a state
official.

Ex parte Young, 209 U.S. 123, 155-56 (1908); League of

Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008).
As the Sixth Circuit explained in Brunner,
The test for determining whether the Ex parte
Young exception applies is a “straightforward” one.
Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535
U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).
The court considers “whether [the] complaint alleges an
ongoing violation of federal law and seeks relief
properly characterized as prospective.” Id. (alteration
in original) (citation omitted); Dubuc v. Mich. Bd. of
Law Exam'rs, 342 F.3d 610, 616 (6th Cir. 2003). The
focus of the inquiry remains on the allegations only;
it “does not include an analysis of the merits of the
claim.” Verizon, 535 U.S. at 646, 122 S.Ct. 1753;
Dubuc, 342 F.3d at 616.
Id. at 474.
Defendants contend that Mr. Hendricks does not describe an
ongoing violation of federal law in his amended complaint.
Defendants read the amended complaint as alleging in only minimal
detail “three or four separate use of force incidents,” all of
which took place in the past.

In response, Mr. Hendricks asserts

that his complaint alleges a continuing policy of deliberate
indifference that he can demonstrate only through a discussion of
events that have occurred previously.

As the Court reads the

amended complaint, Mr. Hendricks has attempted to allege a course
of conduct beyond a few unrelated incidents.
While the factual allegations regarding an ongoing violation
of federal law are not highly detailed, construing the amended
complaint broadly as the Court is required to do, Mr. Hendricks
does allege an ongoing “problem with the recruitment, training,
supervision, and discipline of employees at Pickaway Correctional
Insitution” and that, absent some Court intervention in the form
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of declaratory relief, the defendants will continue to violate
inmates’ constitutional rights or to intimidate inmates into
foregoing their constitutional rights.
(Doc. #47) at ¶¶55 and 77.

See Amended Complaint

In addition to these allegations, Mr.

Hendricks specifically requests injunctive relief in the form of
a restriction on Mr. Hazzard’s time in the Frazier Health Center,
anger management training for corrections staff with more than
two misuse of force complaints, an investigation of all use of
force complaints within the last three years to determine the
appropriateness of the force used, background checks of all
Pickaway staff, and the issuance of medical cards to inmates
summarizing any medical restrictions.
Mr. Hendricks’ claims for relief fairly can be characterized
as seeking “relief that would ‘merely compel the state officer’s
compliance with federal law in the future’” and as a result are
prospective in nature.

Perez v. Wade, 652 F.Supp.2d 901, 906-07

(W.D. Tenn. 2009)(citation omitted)(plaintiff’s request for,
among other relief, a requirement that defendants undergo
training regarding discrimination against Hispanics, an order
compelling defendants to provide a written apology, and a
directive that defendants refrain from targeting Hispanics found
to be prospective in nature); see also Nelson v. Miller, 170 F.3d
641, 646 (6th Cir. 1999); Doe v. Wigginton, 21 F.3d 733, 737 (6th
Cir. 1994).

Consequently, Mr. Hendricks’ claims for injunctive

and declaratory relief fall within the Ex parte Young exception
and therefore are not barred by the Eleventh Amendment.
V.

Conclusion

For the reasons stated above, it is recommended that the
motion to dismiss (#48) be granted as to any claim for damages
against the defendants in their official capacities.

Further, it

is recommended that the motion to dismiss be denied as to any
claim for declaratory or injunctive relief against the defendants
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in their official capacities.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
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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