Eiland v. Timmerman-Cooper et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS, Plaintiff's Objections are OVERRULED. Plaintiff's federal causes of action are DISMISSED and the Court DECLINES to exercise supplemental jurisdiction over any potential state law claims. The Clerk is DIRECTED to remove this action from the Court's pending case list. Signed by Judge Algenon L. Marbley on 9/13/2012. (cw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MACKIE EILAND,
Plaintiff,
Civil Action 2:12-cv-00453
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, LONDON CORRECTIONAL,
INSTITUTION,
Defendant.
ORDER
This matter is before the Court for consideration of the May 31, 2012 Report and
Recommendation. (ECF No. 5.) Upon an initial screen of Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915(e)(2), the Magistrate Judge recommended that the Court dismiss Plaintiff’s
Complaint for failure to state a federal claim. The Magistrate Judge further recommended that
the Court decline to exercise supplemental jurisdiction over any potential state law claim. On
June 11, 2012, Plaintiff filed Objections to the Report and Recommendation. (ECF No. 6.) For
the reasons that follow, Plaintiff’s Objections are OVERRULED and the Report and
Recommendation is ADOPTED. Accordingly, Plaintiff’s federal causes of action are
DISMISSED and the Court DECLINES to exercise supplemental jurisdiction over any potential
state law claims.
I.
Plaintiff, a prisoner proceeding pro se and in forma pauperis, brings this action against
Defendants Deb Timmerman-Cooper, the Warden of the London Correctional Institution, and
the Ohio Department of Rehabilitation and Correction (“ODRC”), pursuant to 42 U.S.C. § 1983.

His claims appear to be for unconstitutional conditions of confinement pursuant to the Eighth
Amendment. Within his Complaint, Plaintiff specifically maintains prison maintenance
employees activated the prison’s heating system without properly checking or cleaning the
heating vents. Plaintiff contends that because of such actions he has suffered health problems
with regard to his breathing.
The Magistrate Judge concluded that Plaintiff failed to state a federal cause of action.
With regard to the ODRC, the Magistrate Judge found that Eleventh Amendment immunity
applied. Additionally, the Magistrate Judge found that Plaintiff failed to state a cause of action
against Defendant Timmerman-Cooper. The Magistrate Judge specifically concluded that
Plaintiff’s cause of action against Defendant Timmerman-Cooper was based on respondeat
superior and that he failed to establish personal liability.
Plaintiff offers generally conclusory Objections in which he maintains that he did state
facially plausible claims. Within his Objections, Plaintiff adds to the facts he originally pled,
stating that Defendant Timmerman-Cooper directed her subordinates to turn on the heating vents
in a manner that ultimately turned out to be negligent. Plaintiff also requests, in lieu of
dismissal, that the Court grant him an opportunity to amend.
II.
Pursuant to 28 U.S.C. § 1915, the Court shall dismiss the action of a prisoner proceeding
in forma pauperis upon a finding that the Complaint “fails to state a claim on which relief may
be granted . . . .” 28 U.S.C. § 1915(e)(2)(ii). As the Magistrate Judge recognized, the Court
applies the same standards, in deciding whether a plaintiff states a claim, as it would pursuant to
Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring a complaint, in order to survive a
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motion to dismiss, to plead “sufficient factual matter” to state a facially plausible claim). As the
United States Court of Appeals for the Sixth Circuit has provided, “[i]f a complaint satisfies the
criteria set forth in § 1915(e) when filed, the district court is required to dismiss the complaint
without affording the plaintiff an opportunity to amend it.” Reagan v. Hull, 99 F. App’x 734,
736 (6th Cir. 2004); see also Benson v. O'Brian, 179 F.3d 1014, 1016 (6th Cir. 1999) (“This
court has held that the district courts are not to permit plaintiffs to amend a complaint to avoid
dismissal pursuant to these provisions . . . .”). Finally, the Court must construe Plaintiff’s pro se
Complaint liberally.

Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010).

Although the Constitution does not require comfortable prisons, it does require prison
officials to “provide humane conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832
(1994). Nevertheless, to establish cruel and unusual punishment based on conditions of
confinement, “a prison official must have a sufficiently culpable state of mind.” Id. at 834
(internal quotations omitted). Specifically, a claimant must establish deliberate indifference, a
“state of mind more blameworthy than negligence” and instead requires an official to “know[] of
and disregard[] an excessive risk to inmate health or safety . . . .” Id. at 835, 837. Furthermore,
as the Magistrate Judge recognized, “[s]ection 1983 liability . . . cannot be premised solely on a
theory of respondeat superior, or the right to control employees.” Heyerman v. County of
Calhoun, 680 F.3d 642, 647 (6th Cir. 2012).
III.
The Court agrees with the Magistrate Judge that Plaintiff fails to plead a facially
plausible cause of action. First, the Eleventh Amendment bars Plaintiff’s claim against the
ODRC. As the Magistrate Judge provided:
To the extent Plaintiff attempts to bring a claim directly against the ODRC,
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Eleventh Amendment Immunity applies. The Eleventh Amendment to the United
States Constitution provides that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or
Subject of any Foreign State.” U.S. Const. amend. XI. Consequently, “[t]he
Eleventh Amendment bars suits brought in federal court against a state and its
agencies unless the state has waived its sovereign immunity or consented to be
sued in federal court.” Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). As
this Court has held, the “ODRC is a state agency and therefore enjoys Ohio’s
sovereign immunity in federal court, unless waived by the state.” Tackett v. Ohio
Dept. of Rehab. & Corr., No. 2:10–cv–979, 2011 WL 5076401, at *3 (S.D. Ohio
Oct. 25, 2011). “Ohio has not waived its sovereign immunity in federal court.”
Id. (citing Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999)). The Eleventh
Amendment, therefore, bars Plaintiff’s claims against the ODRC.
(Report and Recommendation 6–7, ECF No. 5.)
Second, the Court finds that Plaintiff fails to state a 42 U.S.C. § 1983 claims against
Defendant Timmerman-Cooper. Based on the original Complaint, Plaintiff seeks liability
against Defendant Timmerman-Cooper based on her control over her subordinates rather than on
her own personal conduct. As detailed above, such an action is not viable under 42 U.S.C. §
1983. Furthermore, Plaintiff does not allege sufficient facts to plead a plausible cause of action
based on failure to train.
Within her Objections, Plaintiff does maintain that Defendant Timmerman-Cooper
directed her employees to turn on the heating vents, which ultimately led to Plaintiff’s alleged
injury. Even including this allegation within Plaintiff’s original Complaint, however, Plaintiff
fails to plead a facially plausible claim. In particular, even assuming that Defendant
Timmerman-Cooper directed her employees to turn on the heating vents in a manner that
ultimately was negligent, Plaintiff has not provided sufficient factual matter to establish that
Defendant Timmerman-Cooper acted with deliberate indifference. The Court has no grounds for
inferring that Defendant Timmerman-Cooper was disregarding a known excessive risk.

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Ultimately, the facts Plaintiff pleads suggest potential negligence on the part of prison
employees, not deliberate indifference. The fact that Plaintiff pleads, in conclusory fashion, that
Defendants acted deliberately is insufficient. See Ashcroft , 556 U.S. at 678 (“A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do.”) (internal quotations omitted).
It is not clear, from Plaintiff’s original Complaint and Objections, whether he is
attempting to bring independent state law claims for negligence. Assuming Plaintiff is
attempting to bring such claims, the Court agrees with the Magistrate Judge that, under the
circumstances of this case, it is proper to decline supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367(c)(3).
Finally, to the extent Plaintiff requests an opportunity to amend, this request is DENIED.
As detailed above, the Sixth Circuit has held that a district court is required to dismiss an in
forma pauperis action pursuant to 28 U.S.C. § 1915(e)(2) upon a finding that the provision
applies. Even assuming that the Court has some discretion to allow amendment, based on
Plaintiff’s Complaint or Objections it appears that allowing amendment would be futile.
IV.
Based on the above reasoning, as well as the analysis within the May 31, 2012 Report
and Recommendation, Plaintiff’s Objections (ECF No. 6) are OVERRULED and the Report and
Recommendation (ECF No. 5) is ADOPTED. Accordingly, Plaintiff’s federal causes of action
are DISMISSED and the Court DECLINES to exercise supplemental jurisdiction over any
potential state law claims. The Clerk is DIRECTED to remove this action from the Court’s
pending case list.

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IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT
DATED: September 13, 2012

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