Hendricks et al v. Kasich et al
Filing
41
ORDER granting in part and denying in part 32 to Withdraw Rule 60 Motion and Replace with a Motion to Amend and Supplement Complaint - Mr. Hendricks shall file an amended complaint consistent with this order w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 5/16/2014. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Benjamin Hendricks,
:
Plaintiff,
:
v.
:
Case No. 2:12-cv-729
:
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
John Kasich, et al.,
Defendants.
:
ORDER
This matter is before the Court on Benjamin Hendricks’
motion to amend the complaint.
Defendants Andrew Eddy, John
Gardner, and Gary Mohr have filed a response and the motion has
been fully briefed.
For the following reasons, the motion to
amend will be granted in part and denied in part.
I.
Background
This case originally was filed by Mr. Hendricks and Robert
Austin as a putative class action naming several defendants
including Ohio Governor John Kasich, Gary Mohr, Andrew Eddy, John
Gardner, Mona Parks, Dr. Hale, Dr. Khan, Anthony Ayres, and 50
John/Jane Doe defendants.
It was assigned to Magistrate Judge
Abel for an initial screening.
By Report and Recommendation
issued October 23, 2012, Magistrate Judge Abel directed the Clerk
to open a separate case for Mr. Austin and recommended that
defendants Parks, Hale, Khan, and Ayres be dismissed because the
complaint failed to state a claim against them.
After the cases
were severed, this case was reassigned to the undersigned
Magistrate Judge based on its relation to pending cases 2:11-cv399 and 2:11-cv-40.
Governor Kasich and Mr. Hendricks both objected to the
Report and Recommendation.
Governor Kasich also filed a motion
to dismiss.
By order dated May 21, 2013, the Court adopted the
Report and Recommendation and granted Governor Kasich’s motion to
dismiss.
As it relates to the current motion, the order affirmed
that the complaint failed to state a claim against defendants
Parks, Hale, Khan and Ayres because there were no allegations
that these defendants played a role in any denial of Mr.
Hendricks’ medical treatment.
Further, with respect to some of
Mr. Hendricks’ claims, the Court found that the complaint failed
to give fair notice of the claims to any named defendant.
The
order also denied Mr. Hendricks’ motion to amend, citing to then
controlling Sixth Circuit precedent which held that a complaint
subject to screening could not be amended to avoid dismissal
under 1915(e) and 1915A.
Mr. Hendricks filed a motion for relief from judgment on
July 25, 2013.
On September 6, 2013, he filed a motion to
withdraw that motion and replace it with a motion to amend the
complaint.
On March 31, 2014, the Court issued an order granting
in part the motion for leave to withdraw to the extent that Mr.
Hendricks sought to withdraw his motion for relief from judgment.
That order did not address the merits of Mr. Hendricks’ motion
for leave to amend.
II.
Legal Standard
In LaFountain v. Harry, 716 F.3d 944 (6th Cir. 2013), the
Court of Appeals for the Sixth Circuit overruled, in part, McGore
v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), which had long
held that, when the Prison Litigation Reform Act requires
dismissal of a prisoner’s claim, a district court cannot grant
leave to amend.
In LaFountain the Court of Appeals expressly
held that “under Rule 15(a) a district court can allow a
plaintiff to amend his complaint even when the complaint is
subject to dismissal under the PLRA.”
Id. at 951.
Consequently,
the Court will evaluate Mr. Hendricks’ motion to amend under the
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standards set forth in Rule 15(a).
Fed.R.Civ.P. 15(a)(2) states that when a party is required
to seek leave of court in order to file an amended pleading,
“[t]he court should freely give leave when justice so requires."
The United States Court of Appeals for the Sixth Circuit has
spoken extensively on this standard, relying upon the decisions
of the United States Supreme Court in Foman v. Davis, 371 U.S.
178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321 (1971), decisions which give substantial meaning to
the phrase "when justice so requires."
In Foman, the Court
indicated that the rule is to be interpreted liberally, and that
in the absence of undue delay, bad faith, or dilatory motive on
the part of the party proposing an amendment, leave should be
granted.
In Zenith Radio Corp., the Court indicated that mere
delay, of itself, is not a reason to deny leave to amend, but
delay coupled with demonstrable prejudice either to the interests
of the opposing party or of the Court can justify such denial.
Expanding upon these decisions, the Court of Appeals has
noted that:
[i]n determining what constitutes prejudice, the
court considers whether the assertion of the new
claim or defense would: require the opponent to
expend significant additional resources to conduct
discovery and prepare for trial; significantly
delay the resolution of the dispute; or prevent
the plaintiff from bringing a timely action in
another jurisdiction.
Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing
Tokio Marine & Fire Insurance Co. v. Employers Insurance of
Wausau, 786 F.2d 101, 103 (2d Cir. 1986)).
See also Moore v.
City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward,
689 F.2d 637 (6th Cir. 1982).
Stated differently, deciding if
any prejudice to the opposing party is “undue” requires the Court
to focus on, among other things, whether an amendment at any
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stage of the litigation would make the case unduly complex and
confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986)
(per curiam), and to ask if the defending party would have
conducted the defense in a substantially different manner had the
amendment been tendered previously.
General Electric Co. v.
Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990); see also
Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D. Ohio 1992).
The Court of Appeals has also identified a number of
additional factors which the District Court must take into
account in determining whether to grant a motion for leave to
file an amended pleading.
They include whether there has been a
repeated failure to cure deficiencies in the pleading, and
whether the amendment itself would be an exercise in futility.
Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th
Cir.1990); Head v. Jellico Housing Authority, 870 F.2d 1117 (6th
Cir.1989).
The Court may also consider whether the matters
contained in the amended complaint could have been advanced
previously so that the disposition of the case would not have
been disrupted by a later, untimely amendment.
III.
Id.
The Motion to Amend
Mr. Hendricks’ motion to amend, like most of Mr. Hendricks’
filings in this Court, contains a very lengthy and highly
detailed recitation of generally relevant legal principles
complete with a multitude of footnotes.
However, it contains a
very minimal discussion of how these legal principles apply to
his particular case.
Here, for example, Mr. Hendricks does not
explain in his motion what his specific proposed amendments are,
but leaves the Court and the opposing parties with the task of
parsing them out of the thirteen-page proposed amended complaint
on their own.
The Court’s review of the proposed amended
complaint reveals the following.
Mr. Hendricks seeks to add four previously unnamed
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defendants - Steve Huffman, Stuart Hudson, Christine Hall, and
Dr. Christiansen, also referred to as Dr. Christenson.
He also
seeks to revive his previously dismissed claims in this case
relating to his medical conditions, which are exceedingly welldocumented in the records of this Court, including a shoulder
prosthesis, ventral and parastomal hernias, pain management,
Crohn’s disease and diversion colitis.
The Court’s reading of
the proposed amended complaint is borne out by Mr. Hendricks’
reply which contains, in response to defendants’ opposition, his
more specific intentions in seeking to amend.
Defendants have opposed Mr. Hendricks’ proposed amendments
on futility grounds.
They contend that Mr. Hendricks has failed
to state plausible claims for relief and that he has pled nothing
more than legal conclusions with respect to many of his claims.
The Court will examine the proposed amendments in detail below.
A.
The Proposed New Defendants
With respect to proposed defendants Huffman, alleged to be
the Assistant Director of the ODRC, and Hudson, alleged to be the
Chief of the ODRC Bureau of Medical Services, the proposed
amended complaint contains the following allegations at
paragraphs 11 and 12:
... Defendant ... ordered the ODRC/PCI medical staff to
stop all hospital trips and surgeries unless it
concerned a life or death situation. This general
policy was part of a cost-saving approach and resulted
in the denial of medical treatment. Defendant ... at
least caused, created, authorized, condoned, ratified,
ordered, approved, and/or knowingly acquiesced in the
illegal, unconstitutional, and inhumane conditions,
actions, policies, customs, and/or practices alleged in
this complaint. Furthermore, even assuming Defendant
.. . was unaware of Hendricks’ specific situation, such
a policy creates significant risks for prison inmates
in general.
Mr. Hendricks also has proposed an amendment relating to his
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allegations directed to Gary Mohr.
Paragraph 10 of the
proposed amended complaint makes the same allegations against
Mr. Mohr as set forth above.
These allegations are somewhat
different than those made against Mr. Mohr in the original
complaint.
With respect to proposed defendants Hall and Christiansen,
the proposed amended complaint contains the following allegations
at paragraphs 17 and 18:
... Defendant ... is a member of the “Collegial
Review” team. Defendant ... ordered the ODRC/PCI
medical staff to stop all hospital trips and surgeries
unless it concerned a life or death situation. This
general policy was part of a cost-saving approach and
resulted in the denial of medical treatment. Defendant
... at least caused, created, authorized, condoned,
ratified, ordered, approved, and/or knowingly
acquiesced in the illegal, unconstitutional, and
inhumane conditions, actions, policies, customs, and/or
practices alleged in this complaint. Furthermore, even
assuming Defendant was unaware of Hendricks’ specific
situation, such a policy creates significant risks for
prison inmates in general.
B. Eighth Amendment Claims
With respect to his proposed amendments to revive his claims
regarding his numerous medical conditions, Mr. Hendricks seeks to
pursue these claims against previously dismissed defendants
Arthur Hale, Inam Khan, and Anthony Ayres as well as newly
proposed defendants Hall and Christiansen.
Mr. Hendricks does
not appear to be attempting to amend his complaint to include any
claims against previously dismissed defendant Mona Parks.
The
Court will examine the proposed amendments relating to each of
Mr. Hendricks’ medical conditions one by one.
i.
Shoulder Prosthesis
Mr. Hendricks’ allegations regarding his left shoulder
prosthesis are set forth in paragraphs 31 through 40 of the
original complaint.
The relevant allegations are set forth in
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paragraphs 22 through 35 of the proposed amended complaint.
The
proposed amendments appear in paragraphs 29 through 35, and are
intended to replace paragraphs 38 through 40 of the original
complaint.
The relevant paragraphs in the original complaint
state as follows:
38) After two (2) years of complaints and being told
that it was his own fault and his shoulder was still
not repaired, Hendricks finally had a “meeting” with
Tony Ayres (H.C.A./M.O.M. at Pickaway Correctional
Institution), Connie Ostrander (Nurse Supervisor at
Pickaway Correctional Institution), Missy Rousch
(Q.I.C. at Pickaway Correctional Institution), Dr. Khan
(Treating Physicial at Pickaway Correctional
Institution), and Dr. Hale (Chief Medical Officer at
Pickaway Correctional Institution) and was informed
that his shoulder was deemed inoperable by Defendants
Eddy and Gardner.
39) Hendricks informed them that this was not
completely true and told them about his prior consults,
who the surgeon was that performed the original surgery
in 2002, the name of the implant, and even offered to
provide them with the surgical report of his orthopedic
history.
40) Hendricks was told that the problem would be
“looked into” and he would be informed about a decision
when was made which was subsequently denied.
The Court previously held that Mr. Hendricks’ allegations
regarding his shoulder prosthesis stated a claim against
defendants Eddy and Gardner but did not state a claim against
defendants Ayres, Khan, or Dr. Hale.
In an effort to remedy this
deficiency, Mr. Hendricks has included additional allegations in
his proposed amended complaint.
These allegations are as
follows:
29) After two years of complaints, pain, instability,
and numerous dislocations Hendricks had a meeting with
Defendants Hale, Khan, Ayres, and non-parties Connie
Ostrander and Mary Rousch to discuss his various
medical ailments and treatments.
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30) Hendricks was informed that during collegial review
meetings, Defendants Gardner, Eddy, Hall, Christenson,
Hale, Khan, and Ayres decided that Hendricks was not
amenable for surgery and instituted an Alternate Plan
of Care (“Alt. POC”) which amounts to no treatment at
all.
31) Hendricks informed Defendants Hale, Khan, Ayres,
and non-parties Connie Ostrander and Mary Rousch that
if his injury is not addressed soon, among other
complications, his shoulder injuries may not be
repairable.
32) Hendricks told
and offered copies
orthopedic history
was told they were
problem.
them of his prior surgery in 2002
of the surgical report and his
from prior to his incarceration and
not relevant to the current medical
33) Hendricks informed Defendants Hale, Khan, Ayres,
and non-parties Connie Ostrander and Mary Rousch that
he had serious concerns of permanent physical injury if
surgery was not performed and he was told that they
would again look into the problem.
34) Hendricks was subsequently informed that Defendants
Gardner, Eddy, Hall, Christenson, Hale, Khan and Ayres
had again denied surgical intervention and decided on
the same Alt. POC which amounts to no treatment at all
contrary to Ohio Administrative Code (“OAC”) 5120-9-60.
35) Hendricks was later informed by another physician
that, but for the fact of his incarceration, his
shoulder would have been repaired some time ago and
more than likely he would have to wait until after he
was released from prison.
ii.
Crohn’s Disease
Mr. Hendricks’ allegations relating to his Crohn’s disease
are set forth in paragraphs 41 through 47 of the original
complaint.
The Court previously held that Mr. Hendricks’
allegations regarding his Crohn’s disease did not include the
dates he sought treatment, the date treatment was denied, or the
identity of the persons denying him treatment.
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Further, the
Court held that the allegations did not state a claim against
defendants Ayres, Khan or Hale for the denial of medical
treatment because they merely informed him of an upcoming
teleconference to determine a course of treatment.
Mr.
Hendricks’ revised allegations relating to his Crohn’s disease
are set forth in paragraphs 36 through 50 of his proposed amended
complaint.
Paragraphs 36 through 44 of the proposed amended complaint
more or less reiterate the allegations relating to this claim in
the original complaint, with some additional medical explanation
included.
The more substantive proposed amendments appear to be
additional allegations and are set forth in paragraphs 45 through
50 and state as follows:
45) Hendricks eventually saw Dr. Edward Levine over
Tele-conference and testing was ordered to determine a
course of treatment.
46) Dr. Levine ordered a flexible sigmoidoscopy, EGD,
and ileoscopy to check the status and extent of
Hendricks’ disease which were finally followed through
with in addition to a “capsule study.”
47) Hendricks was initially informed by Defendant Hale
that everything was “perfectly within normal limits”
with the exception of an anal stricture and that the
capsule study showed “nothing significant.”
48) Months later Hendricks again saw Dr. Levine over
Tele-conference where he was informed that the testing
and capsule study was not within the normal limits and
in fact showed ulceration in his small intestines
consistent with Crohn’s disease contrary to Defendant
Hale’s earlier assertion and ordered Humira/adalimumab
for treatment in addition to a surgical consult with
Dr. Harzman(?) for either ileal-anal anastomosis or
proctectomy to address issues/problens with Diversion
Colitis.
49) A couple of days later Hendricks saw Dr. Hale to
discuss the Tele-conference with Dr. Levine and was
informed that there was little to no chance of himself,
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Gardner, Eddy, Hall, Christenson, and Ayres approving
this course of treatment and that more likely an Alt.
POC would be ordered which amounts to no treatment at
all contrary to OAC 5120-9-60.
50) Surprisingly, Hendricks was finally approved for
the treatment of his Crohn’s disease with
Humira/adalimumab for ninety (90) days and an order was
placed with the pharmacy for the Humira/adalimumab
thereby hopefully ending the pain, suffering, bleeding,
and other medical complications he has suffered at the
hands of Defendants Gardner, Eddy, Hall, Christenson,
Hale, Khan, Ayres and John/Jane Does for which he is
entitled to damages.
iii. Diversion Colitis
Mr. Hendricks’ allegations regarding his diversion colitis
are set forth in paragraphs 48 through 53 of the original
complaint.
The Court previously concluded that Mr. Hendricks’
allegations did not include the dates he sought and was refused
enemas to treat this condition or the name of the person who
denied him the treatment prescribed by the specialist.
Mr.
Hendricks has set forth his claim relating to his diversion
colitis at paragraphs 60 through 69 of the proposed amended
complaint.
Paragraphs 60 through 65 provide some additional
factual detail not contained in the original complaint but the
more substantive proposed amendments begin with paragraph 65 of
the proposed amended complaint.
These proposed amendments state
as follows:
65) After this was resolved enough to allow treatment,
Defendants Hale and Khan informed Hendricks that
Defendants Gardner, Eddy, Hall, Christenson and
John/Jane Doe decided against resuming treatment due to
“cost and availability” of the short-chain fatty acid
enemas.
66) Hendricks has continued to suffer pain bleeding,
cramps, etc., due to no treatment being provided and
Dr. Levine decided to have Hendricks consult with Dr.
Harsman(?) for either ileal-anal anastomosis or
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proctectomy to address issues/problems with Diversion
Colitis.
67) A couple days later Hendricks saw Defendant Hale to
discuss the Tele-conference with Dr. Levine and was
informed that there was little to no chance of himself,
Gardner, Eddy, Hall, Christenson, and Ayres approving
this course of treatment and that more than likely an
Alt. POC would be ordered which amounts to no treatment
at all contrary to OAC 5120-9-60.
68) Hendricks was finally approved for the surgical
consult with Dr. Harsman thereby hopefully ending the
pain, suffering, bleeding, and other medical
complications he has suffered at the hands of
Defendants Gardner, Eddy, Hall, Christenson, Hale,
Khan, Ayres, and John/Jane Doe for which he is entitled
to damages.
69) Hendricks was finally scheduled for the specialty
consult and was mistakenly sent to the general surgery
clinic before he had seen Dr. Harsman but was also
informed by the surgery team that he needed to consult
with a respiratory therapist prior to surgery and Dr.
Saul (non-party) submitted the specialty consult for
approval by Defendants Gardner, Gardner, Hall,
Christenson, Hale, Ayres, and John/Jane Doe.
iv.
Ventral and Parastomal Hernias
Mr. Hendricks’ allegations regarding his ventral and
parastomal hernias are set forth at paragraphs 54 through 59 of
his original complaint.
The Court previously held that Mr.
Hendricks had stated a claim only against defendant Gardner but
not defendants Parks, Ayres, Khan or Hale for the denial of
treatment for his hernias.
The allegations of the proposed
amended complaint seeking to set forth a claim against defendants
in addition to defendant Gardner are set forth at paragraphs 51
through 59.
Paragraphs 51 through 54 of the proposed amended
complaint essentially reiterate paragraphs 54 through 58 of the
original complaint with minor additions.
Paragraph 59 of the
original complaint states as follows:
59) Again, after several more complaints, Hendricks
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finally had a “meeting” with Tony Ayres (H.C.A./M.O.M.
at Pickaway Correctional Institution), Connie Ostrander
(Nurse Supervisor at Pickaway Correctional
Institution), Missy Rousch (Q.I.C. at Pickaway
Correctional Institution), Dr. Khan (Treating Physician
at Pickaway Correctional Institution), and Dr. Hale
(Chief Medical Officer at Pickaway Correctional
Institution) and was informed that a specialty consult
would again be submitted which was denied again.
The above paragraph is deleted from the proposed amended
complaint and the following paragraphs have been added:
55) After two years of complaints and pain Hendricks
had a meeting with Defendants Hale, Khan, Ayres, and
non-parties Connie Ostrander and Mary Rousch to discuss
his various medical ailments and treatments.
56) Hendricks was informed that during the collegial
review meetings, Defendants Garnder, Eddy, Hall,
Chrisenson, Hale, Khan and Ayres decided that Hendricks
was not amenable for surgery and instituted an Alt. POC
which amounts to no treatment at all.
57) Hendricks informed Defendants Hale, Khan, Ayres,
and non-parties Connie Ostrander and Mary Rousch that
if his injury is not addressed he would experience
further pain and other serious complications due to his
untreated Crohn’s disease which could result in
strangulation.
58) After yet further complaints and Emergency Room
visits at OSUMC Hendricks was informed again that
Defendants Gardner, Eddy, Hall, Christenson, Hale, Khan
and Ayres decided that Hendricks was not amenable for
surgery and instituted the same Alt. POC which amounts
to no treatment at all.
59) Hendricks was later informed by another physician
that, but for his incarceration, his hernias would have
been repaired some time ago.
v.
Pain Management
Mr. Hendricks’ allegations regarding his pain management are
set forth in paragraphs 60 through 64 of his original complaint
and paragraphs 70 through 75 of his proposed amended complaint.
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The gist of these allegations is that Mr. Hendricks suffers from
several painful medical conditions and that, as a result of these
conditions and several others, there is “little to nothing on
formulary available for pain management that [he] is able to
take.”
The allegations of the original complaint were found to
be insufficient to state a claim against defendants Ayres, Khan
or Hale because there were no allegations that pointed to conduct
which denied Mr. Hendricks consult with a pain specialist or that
otherwise denied him treatment for serious medical needs.
Mr.
Hendricks sets forth the following allegations in his proposed
amended complaint to address this deficiency:
71) Because of his extensive allergies, Crohn’s
disease, and a positive diagnosis of Stevens - Johnson
Syndrome there is little to nothing on “formulary”
available for pain management that Hendricks is able to
take and Defendants Gardner, Eddy, Hall, Christenson,
Hale, Khan, and Ayres have refused to provide/approve
non-formulary medications.
72) As such, several physicians at PCI have referred
Hendricks for a specialty consult to the Pain Clinic at
CMC in an attempt to manage his pain caused by his
numerous medical ailments.
73) These consults were denied with no explanation
being provided after two years of complaints and pain
Hendricks had a meeting with Defendants Hale, Khan,
Ayres, and non-parties Connie Ostrander and Mary Rousch
to discuss his various medical ailments and treatments.
74) Hendricks was informed again that during the
collegial review meetings that Defendants Gardner,
Eddy, Hall, Christenson, Hale, Khan, and Ayres decided
to deny the Pain Clinic consult for Hendricks and
instituted an Alt. POC of Neurontin which amounts to no
treatment at all.
75) Hendricks has continued to complain about pain and
has been continuously informed that Defendants Garnder,
Eddy, Hall, Christenson, Hale, Khan, and Ayres decided
to deny the Pain Clinic consults and instituted an Alt.
POC of Neurontin which amounts to no treatment at all.
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IV.
A.
Analysis
Futility Standard
As noted above, defendants challenge Mr. Hendricks’ proposed
amendments on grounds of futility.
There is some conceptual
difficulty presented when the primary basis for a party’s
opposition to the filing of an amended pleading is that the
pleading is futile, i.e. that it fails to state a claim upon
which relief can be granted.
A Magistrate Judge cannot
ordinarily rule on a motion to dismiss, see 28 U.S.C.
§636(b)(1)(A), and denying a motion for leave to amend on grounds
that the proposed new claim is legally insufficient is, at least
indirectly, a ruling on the merits of that claim.
At least where the claim is arguably sufficient, it is
usually a sound exercise of discretion to permit the claim to be
pleaded and to allow the merits of the claim to be tested before
the District Judge by way of a motion to dismiss.
Even a
District Judge may choose to adopt this approach: “The trial
court has the discretion to grant a party leave to amend a
complaint, even where the amended pleading might ultimately be
dismissed.” Morse/Diesel, Inc. v. Fidelity and Deposit Co. of
Md., 715 F.Supp. 578, 581 (S.D.N.Y. 1989).
Consequently, rather
than determining the actual legal sufficiency of the new claim,
in many cases it will suffice to determine if there is a
substantial argument to be made on that question and, if so, to
allow the amended pleading to be filed with the understanding
that a motion to dismiss for failure to state a claim may follow.
“A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”
Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
A
motion to dismiss under Rule 12(b)(6) attacks the legal
sufficiency of the complaint.
See Roth Steel Prods. v. Sharon
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Steel Co., 705 F.2d 134, 155 (6th Cir. 1983).
A complaint must
be construed in the light most favorable to the plaintiff and all
well-pleaded facts must be accepted as true.
However, a
plaintiff must allege “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do....”
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).
Moreover, the factual allegations themselves “must be enough to
raise a right to relief above the speculative level ....”
Id.
The Twombly plausibility standard applies to dismissals of prison
cases on initial review under 28 U.S.C. 1915(e)(2)(B)(i).
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).
Hill
Applying this
standard in the context of a motion to amend, a proposed
amendment is futile if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
B.
Id. at 570.
Eighth Amendment Standard
The legal principles applicable to Mr. Hendricks’ numerous
claims regarding the alleged denial of medical treatment are well
settled.
To establish an Eighth Amendment violation, a prisoner
must show that he or she has a serious medical condition and
that the defendants displayed a deliberate indifference to
his or her health. Estelle v. Gamble, 429 U.S. 97 (1976);
Wilson v. Seiter, 501 U.S. 294 (1991). This formulation has both
a subjective and an objective component. Objectively, the
medical condition at issue must be “serious” as opposed to
“trivial,” “minor,” or “insubstantial.” Subjectively, the
defendants accused of violating the Eighth Amendment must have
acted with a state of mind that can accurately described as
“deliberate indifference.” Each of these components requires
some elaboration.
It is not always easy to distinguish serious medical
conditions from those that are not sufficiently substantial to
implicate the Constitutional prohibition against cruel and
unusual punishment, and the facts concerning the seriousness of
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an inmate’s condition are frequently in dispute. In evaluating
such claims, courts have given weight to a variety of factors,
including whether the condition is one that a doctor or other
health care professional would find worthy of treatment, whether
it significantly affects everyday activities, and whether it
causes (or, if left untreated, has the potential to cause)
chronic and substantial pain. See Chance v. Armstrong, 143 F.3d
688, 702-03 (2d Cir. 1998); see also Harrington v. Grayson, 811
F.Supp. 1221 (E.D. Mich. 1993)(focusing on the severity of the
condition, the potential for harm if treatment is delayed, and
whether such a delay actually caused additional harm).
Under some circumstances, expert testimony may be needed to
establish the seriousness of a medical condition, particularly if
the inmate’s claim is founded upon an unreasonable delay in
treatment. See Napier v. Madison Co., Ky., 238 F.3d 739 (6th
Cir. 2001). In other cases, however, when the condition does not
involve “minor maladies or non-obvious complaints of a serious
need for medical care,” but rather “an obvious need for medical
care that laymen would readily discern as requiring prompt
medical attention by competent health care providers,” expert
testimony is not essential to a finding that a serious medical
condition is present. Blackmore v. Kalamazoo County, 390 F.3d
890, 898 (6th Cir. 2004).
As to the subjective element, in Farmer v. Brennan, 511 U.S.
825, 839 (1994), the Court adopted "subjective recklessness as
used in the criminal law" as the appropriate definition for
deliberate indifference. It held that "a prison official cannot
be held liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety. . . ."
Id. at 837. Officials must be aware of facts from which they
could conclude that a substantial risk exists and must actually
draw that conclusion. Id. Prison officials who know of a
substantial risk to the health or safety of an inmate are free
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from liability if "they responded reasonably to the risk, even if
the harm ultimately was not averted." Id. at 844.
Because an Eighth Amendment medical claim must be
premised on deliberate indifference, mere negligence by a
prison doctor or prison official with respect to medical
diagnosis or treatment is not actionable under 42 U.S.C.
§1983. "[A] complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see
also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994). The Court
will examine each of Mr. Hendricks’ claims relating to his
medical conditions under this standard.
C.
Medical Claims
In addressing Mr. Hendricks’ claims regarding the alleged
denial of medical care, in addition to the above standards, the
Court is mindful that the Sixth Circuit Court of Appeals
distinguishes “between cases where the complaint alleges a
complete denial of medical care and those cases where the claim
is that a prisoner received inadequate medical treatment.
Where
a prisoner has received some medical attention and the dispute is
over the adequacy of the treatment, federal courts are generally
reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.”
Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).
“A
patient’s disagreement with his physicians over the proper
medical treatment alleges no more than a medical malpractice
claim, which is a tort actionable in state court, but is not
cognizable as a federal constitutional claim.”
Owens v.
Hutchinson, 79 Fed.Appx. 159, 161 (6th Cir. 2003).
Before addressing each specific medical condition, however,
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the Court also is compelled to note that a theme apparent from
the face of Mr. Hendricks’ complaints is his belief that costcutting measures are responsible for the alleged denial of his
medical care.
To the extent that his complaint can be read in
this way, his limited allegations in this regard fail to provide
sufficient support for a deliberate indifference claim.
As
explained by the Court of Appeals for the Third Circuit in
addressing conclusory allegations similar to those made here:
[T]he complaint’s allegation that [plaintiff] was
harmed by “policies to save money” is exceedingly
conclusory; the complaint does not provide any
indication of (1) what the relevant policies are, (2)
what basis he has for thinking that “policies to save
money” affected his medical treatment, or (3) what
specific treatment he was denied as a result of these
policies. More fundamentally, the naked assertion that
Defendants considered cost ... does not suffice to
state a claim for deliberate indifference, as prisoners
do not have a constitutional right to limitless medical
care, free of cost constraints under which law-abiding
citizens receive treatment. See Reynolds v. Wagner,
128 F.3d 166, 175 (3rd Cir. 1997)(“[T]he deliberate
indifference standard of Estelle does not guarantee
prisoners the right to be entirely free from the cost
considerations that figure in the medical-care
decisions made by most non-prisoners in our society.”);
Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.
2006)(“The cost of treatment alternatives is a factor
in determining what constitutes adequate, minimum-level
care, but medical personnel cannot simply resort to an
easier course of treatment that they know is
ineffective.” (citations omitted)); Caines v.
Hendricks, No. 05-1701, 2007 U.S. Dist. LEXIS 9453,
2007 WL 496876 at *8 (D.N.J. Feb. 9, 2007)(“[I]t is not
a constitutional violation for prison authorities to
consider the cost implications of various procedures,
which inevitably may result in various tests or
procedures being deferred unless absolutely
necessary.”).
Winslow v. Prison Health Services, 406 Fed.Appx. 671, 674-75 (3rd
Cir. 2011).
As further explained very recently by the court in Kietz v.
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Washington County, Pa., 2014 WL 1316129 (W.D. Pa. March 31, 2014)
(adopting Report and Recommendation),
“Resources are not infinite and reasonable
allocation of those resources, taking into account
cost, does not amount to deliberate indifference even
if a prisoner does not receive the most costly
treatments or his treatments of choice.” Brightwell v.
Lehman, No. Civ.A. 03-205J, 2006 WL 931702, at *8 (W.D.
Pa. April 10, 2006). In this regard, the Court notes
that the Eighth Amendment does not require a prison to
provide an inmate “with the most sophisticated care
money can buy.” United States v. DeCologero, 821 F.2d
39, 42 (1st Cir. 1987). Nor are prison medical
officers required to be blind to assessing risks and
costs of various treatment options. Furthermore, it is
also clear that a dispute regarding whether doctors
erred in this cost-benefit assessment, which is the
essence of the medical art, sounds in negligence only
and may not be case as a constitutional violation.
Thus, it is well-settled that an allegation of “mere
malpractice of medicine in prison does not amount to an
Eighth Amendment violation. This principle may cover
... [an allegedly erroneous calculus of risks and
costs. ....” Harrison v. Barkley, 219 F.3d 132, 139
(2d Cir. 2000).
Based on this reasoning, to the extent that Mr. Hendricks
suggests that cost considerations support a plausible claim of
deliberate indifference with respect to any of his medical
conditions, the Court does not agree.
The Court will now turn to
each individual condition.
i.
Shoulder Prosthesis
Turning first to the claim relating to his shoulder
prosthesis, the Court previously had found that Mr. Hendricks’
complaint stated a claim against defendants Eddy and Gardner
based on allegations that they had denied the shoulder surgery
that specialists had determined Mr. Hendricks needed.
Mr.
Hendricks has now refined his allegations to indicate that
defendants Hall, Christenson, Hale, Khan, and Ayres also were
part of the decision-making process that led to the denial of his
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recommended shoulder surgery.
He also alleges that these
defendants instituted an alternate plan of care to address this
long-standing medical condition, but that in his view, this
amounts to no treatment at all.
He explains in his reply that
the alternative plan of treatment is “to do nothing unless it is
life threatening.”
He contends that he has suffered pain,
instability and numerous dislocations as a result of having been
denied surgery.
Consistent with the original complaint, Mr.
Hendricks has stated a claim for deliberate indifference against
these additional defendants in his proposed amended complaint.
ii.
Crohn’s Disease
Turning to Mr. Hendricks’ claim regarding his Crohn’s
disease, with which he was diagnosed in 2002, the Court had
concluded on initial screening that there was not enough
information relating to the alleged denial of treatment and that
there were no allegations that defendants Ayres, Khan or Hale
denied necessary treatment.
dismissed in its entirety.
Consequently, this claim was
In his proposed amended complaint,
Mr. Hendricks provides some additional detail.
He asserts that
he endured two years of bleeding and pain before he was granted a
meeting with defendants Hale, Khan, and Ayres.
Dr. Hale led him
to believe that the results of a specialist ordered test were
normal and “months later” he was informed by the specialist that
this was not true.
He further asserts that, at this later date,
the specialist ordered a specific treatment and Dr. Hale
initially told Mr. Hendricks that the course of treatment was
unlikely to be approved by defendants Gardner, Eddy, Hall,
Christenson and Ayres.
Ultimately, although the proposed amended
complaint does not state when, the recommended course of
treatment was approved.
Mr. Hendricks asserts that he hopes this
treatment will end the “pain, suffering, bleeding, and other
medical complications he has suffered at the hands of [these]
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Defendants....”
Defendants contend that the fact that Mr. Hendricks now has
been approved for treatment precludes a deliberate indifference
claim.
The Court does not agree.
In his reply, Mr. Hendricks
argues that paragraphs 42 and 44 of the proposed amended
complaint allege deliberate indifference arising from delay.
These paragraphs allege that Mr. Hendricks suffered severe pain
and bleeding, complained about these issues, and waited two years
for a meeting to determine a course of treatment.
Additional
paragraphs assert that, once Mr. Hendricks was seen over Teleconference by a specialist, his access to treatment was then
further delayed by Dr. Hale’s alleged actions.
Certainly, under
specific circumstances, delay in access to medical attention may
result in a violation of the Eighth Amendment.
See Blackmore v.
Kalamazoo County, 390 F.3d 890, 896-898 (6th Cir. 2004).
The
Court acknowledges that the details surrounding these allegations
are somewhat sparse.
However, reading Mr. Hendricks’ allegations
as a whole, in the light most favorable to him, they are
sufficient at this preliminary stage to allow him the opportunity
at additional factual development on the issue of the alleged
delay in treatment for his Crohn’s disease.
Consequently, the
motion to amend will be granted as it relates to Mr. Hendricks’
claim regarding his Crohn’s disease.
iii.
Ventral and Parastomal Hernias
As for Mr. Hendricks’ claims regarding his ventral and
parastomal hernias, the Court concluded on initial screening that
he had stated a claim only against defendant Gardner for denying
surgery determined by a specialist to be necessary.
The
allegations of his proposed amended complaint do not indicate
that a specialist determined hernia surgery to be medically
necessary.
Rather, the amended allegations state that Mr.
Hendricks was scheduled for the surgery clinic, was unable to
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keep that appointment, and was re-evaluated by Dr. Gardner who
concluded that surgery was not necessary until the hernias became
a life-threatening emergency.
Rather than surgery, an alternate
plan of care was instituted for Mr. Hendricks by the various
defendants.
The proposed amended complaint does not elaborate
what this alternate plan of care is but Mr. Hendricks’ reply
states that the plan of care is “to do nothing unless it is life
threatening.”
Beyond this, the proposed allegations merely
assert Mr. Hendricks’ personal opinions regarding the potential
for complications and his belief that the alternate plan of care
amounts to no care at all.
A fair reading of the proposed amended claim indicates that
Mr. Hendricks has not been denied medical care with respect to
his hernias.
The allegations indicate nothing beyond a
difference of opinion regarding the diagnosis and medical
treatment Mr. Hendricks has been provided.
As discussed above,
this does not state a federal constitutional claim under the
Eighth Amendment.
Westlake, 537 F.2d 857, 860.
Mr. Hendricks’
belief that serious complications will result if he does not
undergo hernia surgery is simply that - his belief.
Moreover,
while Mr. Hendricks alleges that he was “later informed by
another physician” that his hernias would have been repaired if
he were not incarcerated, this allegation does not suggest
deliberate indifference to his condition.
Mr. Hendricks, as a
prisoner, is not entitled to “‘unqualified access to health
care.’”
Jeffries v. Paulius, 2013 WL 5740152, *4 (W.D. Ky.
October 22, 2013), quoting Hudson v. McMillian, 503 U.S. 1,8
(1992); see also Winslow v. Prison Health Services, 406 Fed.Appx.
671, 674 (3rd Cir. 2011) (“prisoners do not have a constitutional
right to limitless medical care, free of the cost constraints
under which law-abiding citizens receive treatment”).
Consequently, the motion for leave to amend will be denied as to
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this claim.
iv.
Diversion Colitis
With respect to Mr. Hendricks’ claim regarding his diversion
colitis, the Court found that the original complaint failed to
provide sufficient details to provide any named defendant fair
notice of the claim.
In his proposed amended complaint, Mr.
Hendricks has set forth more detail as outlined above.
Further,
Mr. Hendricks’ argues in his reply that the allegations in
paragraphs 63 and 65 regarding “pain” he endured for two years
before treatment was approved and “pain and bleeding” he endured
during an eighteen-month lapse in treatment are sufficient to
state a claim relating to this medical condition.
Because, as
discussed above, a delay in treatment, under certain
circumstances, can amount to deliberate indifference, the Court
concludes that Mr. Hendricks has stated a claim sufficient to
overcome defendants’ futility argument.
See Blackmore v.
Kalamazoo County, 390 F.3d 890, 896-898 (6th Cir. 2004).
Consequently, the motion for leave to amend will be granted as to
this claim.
v.
Pain Management
Finally, with respect to Mr. Hendricks’ allegations
regarding pain management, the Court concluded on initial
screening that Mr. Hendricks had failed to state a claim because
he did not allege that any named defendant denied him a pain
specialist consult or otherwise denied him treatment.
In his
proposed amended complaint, he alleges that defendants Gardner,
Eddy, Hall, Christenson, Hale, Khan and Ayres denied his pain
clinic consult and have prescribed an alternate plan of care that
consists of the drug Neurontin, which he contends amounts to no
treatment at all.
However, these allegations indicate that Mr.
Hendricks has received medical attention, he simply has not
gotten what he wants.
As such, these allegations demonstrate a
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difference of opinion but do not create a constitutional claim.
Westlake, 537 F.2d at 860 n.5.
Further, to the extent that Mr.
Hendricks suggests this treatment amounts to no treatment at all,
this conclusory statement is insufficient to state a claim.
Consequently, the motion for leave to amend will be denied as to
this claim.
D.
Remaining Claims
Mr. Hendricks’ proposed amended complaint also attempts to
set forth a claim against defendants Mohr, Huffman, and Hudson in
both their individual and official capacities for their roles in
the implementation of a policy of cost-cutting measures allegedly
resulting in the denial of medical treatment.
Mr. Hendricks
alleges, using language attempting to assert a supervisory
liability claim, that these individuals, in their roles with the
ODRC, directed medical staff to “stop all hospital trips and
surgeries unless it concerned a life or death situation.”
Mr.
Hendricks acknowledges that these defendants may have been
unaware of his specific situation but asserts that, nevertheless,
they were aware of the risks of the policy.
Allegations of direct involvement in constitutional
deprivations, rather than attempts to impose liability by virtue
of the doctrine of respondeat superior, are necessary in order to
hold an individual defendant liable under §1983.
Monell v.
Department of Social Services, 436 U.S. 658 (1978).
Although
there are other legal claims that can properly be asserted
against a supervisor simply because someone under his or her
supervision may have committed a legal wrong, liability for
constitutional deprivations under 42 U.S.C. §1983 cannot rest on
such a claim.
Consequently, unless the plaintiff's complaint
affirmatively pleads the personal involvement of a defendant in
the allegedly unconstitutional action about which the plaintiff
is complaining, the complaint fails to state a claim against that
-24-
defendant and dismissal is warranted.
See also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Mr. Hendricks has
not alleged the personal involvement of any of these defendants
in the conduct underlying any of his claims.
In fact, he
specifically recognizes in the proposed amended complaint that
these defendants may have been unaware of his specific situation.
Consequently, any claims against these defendants in their
personal capacities would not survive a motion to dismiss.
To the extent that Mr. Hendricks seeks to sue these
defendants in their official capacities, “a suit against a state
official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office.”
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989); see
also Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008).
In
this case, Mr. Hendricks’ official capacity claims are construed
as against the State of Ohio.
Accordingly, his claims for
monetary relief are barred by the Eleventh Amendment.
Kentucky
v. Graham, 473 U.S. 159 (1985).
An exception set forth in Ex parte Young, however, allows
for “actions against state officials sued in their official
capacity for prospective injunctive or declaratory relief.”
Thiokol Corp. v. Department of Treasury, Revenue Div., 987 F.2d
376, 381 (describing the holding of Ex parte Young, 209 U.S. 123,
28 S.Ct. 441, 52 L.Ed. 714 (1908)).
Under the Ex parte Young
exception, “a federal court can issue prospective injunctive and
declaratory relief compelling a state official to comply with
federal law ... [because] it is beyond dispute that federal
courts have jurisdiction over suits to enjoin state officials
from interfering with federal rights.”
S & M Brands, Inc. v.
Cooper, 527 F.3d 500, 507–08 (6th Cir. 2008) (quotation marks and
internal citations omitted).
The Court in Young held that a suit
challenging the constitutionality of a state official’s action in
-25-
enforcing state law is not considered to be against the State, so
Eleventh Amendment immunity does not apply.
U.S. 123, 150-156.
Ex parte Young, 209
“In order to qualify under Ex parte Young, []
an action must seek prospective relief to end a continuing
violation of federal law.”
Carten v. Kent State University, 282
F.3d 391, 395 (6th Cir. 2002).
The exception does not, however, extend to any retroactive
relief.
Quern v. Jordan, 440 U.S. 332, 338 (1979).
That is, if
a complaint against a state official is “based entirely on past
acts and not continuing conduct that, if stopped, would provide a
remedy to them, ... it ... does not come under the doctrine of Ex
parte Young.” Gean v. Hattaway, 330 F.3d 758, 776 (6th Cir. 2003)
(dismissing plaintiffs' claim for injunctive relief from state
officials after determining their complaint was based entirely on
past acts).
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 (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; Dubuc, 342 F.3d at 616.
Mr. Hendricks’ complaint is based almost entirely on past
conduct.
“[I]njunctive relief, even prospective injunctive
relief, against state officers named in their official capacities
‘should not be granted if the relief is tantamount to an award
for past violation of federal law, even though styled as
something else.’”
Boysen v. Holbrook, 2007 WL 852198, *4 (S.D.
Ohio March 19, 2007) (Marbley, J.), quoting Barton v. Summers,
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293 F.3d 944, 949 (6th Cir. 2001).
The only claim for which Mr. Hendricks arguably is seeking
prospective relief against these defendants is his claim relating
to the alleged denial of his recommended shoulder surgery.
This
is so because it is the only claim where Mr. Hendricks alleges
that he continues to be denied recommended medical treatment.
Further, this is so even though Mr. Hendricks seeks an injunction
ordering defendants to “immediately cease all forms of denial of
medical care to the Plaintiff,” “[a]llow the Plaintiff to
participate in the ‘collegial review’ process regarding his
medical care,” “[p]rovide any needed medical care previously
denied and currently being denied,” and “[p]rovide pain
management for the Plaintiff.”
12.
See Amended Complaint, ¶98, p.
The Court, however, is required to examine his claims
substantively rather than by the form in which they appear.
Brown v. Strickland, 2010 WL 2629878, *4 (S.D. Ohio June 28,
2010), citing Lawrence v. Welch, 531 F.3d 364 (6th Cir. 2008).
The substance of all but Mr. Hendricks’ shoulder surgery
claims relates to the alleged denial of medical treatment in the
past which may or may not have resulted from alleged actions of
these defendants in ordering medical staff to stop all hospital
trips and surgeries unless it concerned a life or death
situation.
In order for Mr. Hendricks to prevail on these claims
against these defendants, the Court would have to issue a
declaration that this order was made in violation of Mr.
Hendricks’ Eighth Amendment rights.
Only upon such a finding
could the Court conclude that Mr. Hendricks would be entitled to
any injunctive relief he may be seeking.
Stated another way,
with respect to all remaining claims except the claim relating to
his need for shoulder surgery, Mr. Hendricks is seeking relief
“for a past, one-time decision of the [defendants] that
purportedly violated [his] federal constitutional rights.”
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S & M
Brands, Inc., 527 F.3d at 509.
This is clearly a request for
retrospective relief as it relates to the other remaining claims.
The Eleventh Amendment not only bars retroactive relief where the
plaintiff is seeking monetary damages, but all retroactive
relief.
Id.
Consequently, any claims against defendants
relating to Mr. Hendricks’ diversion colitis and Crohn’s disease
would not survive a motion to dismiss.
For this reason, the
motion to amend will be denied as it relates to defendants Mohr,
Hudson, and Huffman with respect to all claims but the claim
relating to Mr. Hendricks’ shoulder.
IV.
Order
For the reasons set forth above, the motion for leave to
amend (Doc. 32) is granted in part and denied in part as set
forth above.
Specifically, the motion for leave to amend is
granted as it relates to Mr. Hendricks’ claims regarding his
shoulder prosthesis, Crohn’s disease, and colitis.
Further, it
is granted to the extent that it alleges a claim relating to the
denial of Mr. Hendricks’ shoulder surgery against defendants
Mohr, Hudson, and Huffman in their official capacities.
motion is denied in all other respects.
The
Mr. Hendricks shall file
an amended complaint consistent with this order within fourteen
days.
APPEAL PROCEDURE
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.
The motion must specifically designate the order or
part in question and the basis for any objection.
Responses to
objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
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aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding
the filing of any objections, unless stayed by the Magistrate
Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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