Swogger v. Yonak et al

Filing 16

REPORT AND RECOMMENDATIONS Dft's 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jarrod Robinson, Michelle Miller, Scott Yonak, Ohio Department of Rehabilitation and Correction be GRANTED; Objections to R&R due by 6/8/2012. Signed by Magistrate Judge Mark R. Abel on 5/22/12. (sh1)

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

George H. Swogger,

:

Sgt. Scott Yonak, et al.,

Judge Frost

:

v.

Civil Action 2:11-cv-01051

:

Plaintiff

Magistrate Judge Abel

:

Defendants

Report and Recommendation
Plaintiff George H. Swogger, a former state prisoner, brings this action against
defendants under 42 U.S.C. § 1983 alleging violations of his Fourth, Eighth and
Fourteenth Amendment rights and for negligence, gross negligence, and negligent
infliction of emotional stress. This matter is before the Magistrate Judge on defendants
Scott Yonak, Michelle Miller, and the Ohio Department of Rehabilitation and
Correction’s (“ODRC”) unopposed January 17, 2012 motion to dismiss.
I.

Allegations in the Complaint

On August 10, 2011, plaintiff George H. Swogger, a prisoner at the Belmont
Correctional Institution, was subjected to a pat down search as he was exiting five
house. Contraband was found on plaintiff, and he was taken to another area for a search
of his person. Defendants Yonak and Robinson took plaintiff to the “quiet area” of the
dorm and performed a strip search of plaintiff. The complaint alleges that the “quiet

1

area” is not an enclosed place. While plaintiff was searched, anyone in the area could
see plaintiff. Plaintiff was forced to stand in the open area undressed for 15 minutes in
full view of female staff and other inmates. Plaintiff suffered mental anguish and
emotional distress from being displayed in this state of undress.
II.

Arguments of the Parties

Defendants argue that plaintiff’s action should be dismissed because prisoners
are barred from bringing civil actions for mental or emotional injury without a prior
showing of physical injury. Defendants contend that Swogger does not allege that he
suffered any physical injury. Defendants further maintain that the Prison Litigation
Reform Act applies to a plaintiff who filed his case while he was a prisoner even if he
was subsequently released from prison.
Plaintiff failed to file a response to defendants’ motion to dismiss.
III.

Motion to Dismiss

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a court must construe the complaint in the light most
favorable to the plaintiff and accept all well-pleaded material allegations in the
complaint as true. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v.
Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th
Cir. 1995); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982).
Although the court must apply a liberal construction of the complaint in favor of the
party opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513
2

F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or
unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v.
Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-124 (6th
Cir. 1971). In reading a complaint, however, a court will indulge all reasonable
inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072,
1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to the
complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451
F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to
offer evidence to support the claims, rather than whether the plaintiff will ultimately
prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court
cannot consider extrinsic evidence in determining whether a complaint states a claim
upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155-56.
IV.

Discussion

The Prison Litigation Reform Act states in pertinent part:
No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury.
42 U.S.C. § 1997e(e). The Sixth Circuit requires that a plaintiff seeking relief based on
emotional damages must show that he also suffered a physical injury that is more than
de minimis to state an Eighth Amendment claim. Here, plaintiff fails to alleged that he
suffered any physical injury. Jarriett v. Wilson, 162 Fed. Appx. 394, 400 (6th Cir. 2005).

3

Because Swogger has not alleged that he suffered a physical injury as required by
section 1997e(e), his Eighth Amendment claim should be DISMISSED.
Defendants’ motion to dismiss does not address plaintiff’s remaining claims for
violations of his Fourth and Fourteenth Amendment rights and for negligence, gross
negligence, and negligent infliction of emotional stress. However, under 42 U.S.C.
1997e(c)(1), “[t]he court shall on its own motion . . . dismiss any action brought with
respect to prison conditions under section 1983 of this title, . . . by a prisoner confined in
any jail, prison, or other correctional facility if the court is satisfied that the action is
frivolous, malicious, fails to state a claim upon which relief can be granted. . . .”
Plaintiff’s claims based on negligence fail. The Supreme Court has held that the
Due Process Clause is not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty, or property. Daniels v. Williams, 474 U.S. 327,
328 (1986). “Negligence does not suffice to state an access to the courts violation under §
1983.” Garrison v. Corr, 26 F. Appx 410, 411 (6th Cir.2001) (citing Collins v. Harker
Heights, Tex., 503 U.S. 115, 127–30 (1992)). Plaintiff’s claim based upon the Fourth
Amendment also fails. The Supreme Court has ruled that visual body cavity searches
are constitutional. Bell v. Wolfish, 441 U.S. 520, 558-60 (1979).
V.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that
defendants Scott Yonak, Michelle Miller, and the Ohio Department of Rehabilitation

4

and Correction’s (“ODRC”) unopposed January 17, 2012 motion to dismiss be
GRANTED and that plaintiff’s complaint be DISMISSED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/ Mark R. Abel
United States Magistrate Judge

5