Carrigan-Terrell v. Mohr et al

Filing 4

INITIAL SCREENING AND REPORT AND RECOMMENDATIONS re 3 Complaint. It is RECOMMENDED that defendants Gary Mohr, Dr. Welch, Elizabeth Wright and Capt. Putt be DISMISSED. It is FURTHER ORDERED that Defendants Dr. Welch, Elizabeth Wright, and Capt. Pu tt are not required to answer the complaint unless later ordered to do so by the Court. Defendants Warden Jennie Trim, Dr. Nalluri, Dr. Tench, Dr. Tana, Mr. Nicastro, Nurse Maldinado, and Nurse Riter are ORDERED to answer the complaint w/in forty-five (45) days of the date of this ORDER - Objections to Report and Recommendation due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 03/20/2012. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
D'Nanakai Carrigan-Terrell,

:

Plaintiff

:

Civil Action 2:12-cv-0215

:

Judge Frost

:

Magistrate Judge Abel

v.
Gary Mohr, et al.,
Defendants

:

INITIAL SCREENING
REPORT AND RECOMMENDATION
Plaintiff D'Nanakai Carrigan-Terrell, an inmate at the Ohio Reformatory for
Women at the time of the events alleged in the complaint, brings this prisoner civil
rights action under 42 U.S.C. §1983. This matter is before the Magistrate Judge for a
Report and Recommendation on initial screening of the complaint pursuant to 28 U.S.C.
§1915A(a) and (b)1 and 42 U.S.C. §1997e(c) to identify cognizable claims, and to dismiss

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The full text of §1915A reads:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for Dismissal.--On review the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a

the complaint, or any portion of it, which is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. The Magistrate Judge finds that the complaint fails to state a
claim upon which relief may be granted against defendants Gary Mohr, Dr. Welch,
Elizabeth Wright, and Capt. Putt and therefore RECOMMENDS that they be
DISMISSED from this lawsuit. The lawsuit will continue against defendants Warden
Jennie Trim, Dr. Nalluri, Dr. Tench, Dr. Tano, Mr. Nicastro, Nurse Maldinado, and
Nurse Riter as to plaintiff’s claim that they denied her due process of law by forcing her
to take psychotropic medication.
The complaint alleges that three or four times plaintiff has been falsely charged
and convicted of assault. Further, in April 2011 she was placed in segregation on the
erroneous charge of attempting to establish a relationship with an officer. She was
found guilty and sentenced to 15 days in disciplinary control, followed by a placement
in local control.

claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who
is immune from such relief.
(c) Definition.--As used in this section, the term
"prisoner" means any person incarcerated or detained in any
facility who is accused of, convicted of, sentence for, or
adjudicated delinquent for, violations of criminal law or
terms and conditions of parole, probation, pretrial release, or
diversionary program.
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The complaint alleges that on November 20, 2010 Officer Bonjo was escorting
plaintiff when he maced her and punched her in the face. Lt. Booth lied, saying plaintiff
assaulted him. Plaintiff was placed in segregation for 15 days and required to take
bipolar medicine. Plaintiff was handcuffed for 2-3 hours and given no medical attention
for a burning sensation in her eyes. Neither Officer Bonjo nor Lt. Booth are named as
defendants. Doc. 1-2, PAGEID ## 16 and 19. Nor does the complaint identify the
person(s) who denied plaintiff treatment for the tear gas in her eyes.
The complaint further alleges that around June 2010 plaintiff was told to go to
the Residential Treatment Unit to see Dr. Welch. But when she got to the Unit, she was
forcibly placed in a cell and made to undergo a psychological evaluation. She was
forced to remain in the cell 24 hours a day for about 4 days. Then she was required to
live in the Residential Treatment Unit. The complaint also alleges that after plaintiff had
been off psychotropic medicine for five months, Dr. Nalluri requested a mandatory
medication hearing for her. Defendants Dr. Nalluri, Dr. Tano, Dr. Tench, and Nurse
Riter did not let plaintiff attend the first hearing, even though she was competent to do
so. Nurse Riter was supposed to be plaintiff’s liaison, but she favored defendants. On
appeal, defendants Dr. Burke and Mr. Nicastro denied plaintiff the right to call
witnesses and upheld the initial hearing decision to require plaintiff to take medication.
The medication, which has unpleasant side effects, was administered to punish plaintiff.
Dr. Burke denied plaintiff’s appeal; and Warden Jennie Trim never responded to her
appeal. Plaintiff seeks to be removed from mandatory medications.
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Again on September 72, plaintiff was given another mandatory medication
hearing at the request of defendants Dr. Nalluri, Dr. Tano, Dr. Tench, and Nurse
Maldinado. Nurse Crum was plaintiff’s liaison. Dr. Nalluri lied, stating that plaintiff
was assaultive, suicidal, and neglectful of her personal hygiene.
Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley
v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.
Pardus, 551 U.S. 89, 93127 S.Ct. 2197 (2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. ,
, 127
S.Ct. 1955,
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Moreover, pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. at
94; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).
Initial Screening. The complaint contains allegations about disciplinary
convictions and incarceration in disciplinary control and segregation, denial of medical
treatment, and forced medication. Each will be considered separately.
Discipline. An inmate is not entitled to due process of law at a disciplinary
hearing unless placement in disciplinary confinement is accompanied by a withdrawal
of good-time credits or is for a significant period of time that presents an unusual
hardship on the inmate. See, e.g., Sandin v. Conner, 515 U.S. 472, 485-86 (1995) (30-day
2

The complaint does not plead the year. Since plaintiff asks that she be taken off
mandatory medication, I assume that the year is 2011.
4

confinement, without more, did not present “dramatic departure from basic conditions”
of inmate’s indeterminate sentence); Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir. 1995)
(six month confinement in disciplinary confinement was not an atypical and significant
hardship, and return of good time credits mooted claim that restraint affected duration
of confinement). Here the complaint does not allege that plaintiff lost good time credits
and the RIB sentences were just 15 days in disciplinary control.
The United States Supreme Court, in Sandin v. Conner, 515 U.S. 472 (1995),
concluded that, absent “atypical and significant hardship”, a change in the conditions of
confinement does not inflict a cognizable injury that merits constitutional protection. Id.
at 484. Placement in disciplinary segregation is not itself an atypical and significant
hardship. Rimmer-Bey v. Brown, 62 F.3d 789, 791 (6th Cir. 1995).
Consequently, the allegations in the complaint regarding plaintiff’s disciplinary
convictions fail to state a claim.
Assault. Although the complaint alleges that correction officers assaulted
plaintiff on several occasions, it does not name as defendants any of the officers
involved.
Denial medical care. The complaint does not identify any defendant as the
person(s) who allegedly denied plaintiff treatment for tear gas in her eyes.
Involuntary medication. In Washington v. Harper, 494 U.S. 210, 227 (1990), the
United States Supreme Court held that “given the requirements of the prison
environment, the Due Process Clause permits the State to treat a prison inmate who has
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a serious mental illness with antipsychotic drugs against his will, if the inmate is
dangerous to himself or others and the treatment is in the inmate's medical interest.”
Before an inmate is involuntarily medicated, due process requires notice of a hearing
and a meaningful opportunity to be heard. Id. at 228-29. Due process does not require
a judicial decisionmaker. Rather, the decision to involuntarily medicate a prisoner may
be made by medical professionals and corrections officials. Id.
Ohio Department of Rehabilitation and Correction Policy 67-MNH-07 provides
that an inmate with a documented serious illness who refuses voluntary treatment may
be involuntarily medicated after a hearing by a panel of three mental health
professionals consisting of at least one psychiatrist and one psychologist or licensed
independent social worker. The inmate has a right to be present and to offer relevant
evidence, including a right to present testimony and call witnesses, concerning the
necessity of treatment. Involuntary medication may be approved only if it is
demonstrated by clear and convincing evidence that the inmate suffers from a serious
mental illness and as a result of the illness there is a substantial likelihood of serious
harm to himself or others, significant property damage, or that the inmate is gravely
disabled if he is not medicated.
On initial screening, the Magistrate Judge concludes that the complaint
sufficiently alleges claims against defendants Warden Jennie Trim, Dr. Nalluri, Dr.
Tench, Dr. Tana, Mr. Nicastro, Nurse Maldinado, and Nurse Riter for denying plaintiff
due process of law in connection with forcing her to take psychotropic mediation.
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Accordingly, it is hereby RECOMMENDED that defendants Gary Mohr, Dr.
Welch, Elizabeth Wright, and Capt. Putt and be DISMISSED from this lawsuit. The
lawsuit will continue against defendants Warden Jennie Trim, Dr. Nalluri, Dr. Tench,
Dr. Tana, Mr. Nicastro, Nurse Maldinado, and Nurse Riter as to plaintiff’s claim that
they denied her due process of law by forcing her to take psychotropic medication.
IT IS FURTHER ORDERED that the United States Marshal serve upon each
defendant named in part III, B and C of the form civil rights complaint a summons, a
copy of the complaint, and a copy of this Order. Defendants Dr. Welch, Elizabeth
Wright, and Capt. Putt are not required to answer the complaint unless later ordered to
do so by the Court. Defendants Warden Jennie Trim, Dr. Nalluri, Dr. Tench, Dr. Tana,
Mr. Nicastro, Nurse Maldinado, and Nurse Riter are ORDERED to answer or otherwise
respond to the complaint within forty-five (45) days of the date of this Order.
The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney
General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,
OH 43215.
If any party objects to this Report and Recommendation, that party may, within
fourten (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. See 28 U.S.C. §636(b)(1)(B); Fed. R.
Civ. P. 72(b).

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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).
See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge

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