Joseph v. Licking County et al

Filing 2

REPORT AND RECOMMENDATIONS: it is RECOMMENDED that this cmplt be dismissed; US Marshal to serve cmplt & summ upon Dft's; Objections to R&R due by 10/18/2012. Signed by Magistrate Judge Mark R. Abel on 10/1/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
David A. Joseph, Sr.,

:

Plaintiff

Defendants

Judge Graham

:

Licking County, et al.,

Civil Action 2:12-cv-0803

:

v.

:

Magistrate Judge Abel

:

INITIAL SCREENING
REPORT AND RECOMMENDATION
Plaintiff David A. Joseph, Sr., an inmate at the Warren Correctional Institution,
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
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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
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who
is immune from such relief.

cognizable claims, and to dismiss 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 and therefore
RECOMMENDS dismissal of the complaint.
The complaint alleges claims arising out of Joseph's criminal prosecution and
conviction, the investigation leading to the criminal charge, and his incarceration
awaiting and following trial. Named as defendants are Licking County; Judge Thomas
M. Marcelain, Licking County Common Pleas Court; Christopher Reamer, Prosecutor's
Office; Kentheth Oswalt, Licking County Prosecutor; Melanie Angle, Newark Police
Department; Steven J. Sarver, Newark Police Chief; Newark Police Department; City of
Newark; Licking County Justice Center; Licking County Sheriff's Department; LickingMuskingum Community Corrections Center; and Dr. Kahn, Moundbuilders Guidance
Center.
Between February 2010 and the present, Judge Thomas Marcelain failed to give
Joseph fair and impartial hearings, denied his pro se motions, without cause or
investigation, and sentenced him to sentence that is contrary to law. Assistant

(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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Prosecutor Christopher Reamer deprived Joseph of due process and interfered with his
right to the assistance of counsel. Reamer engaged in a pattern of misconduct and
malicious prosecution which denied him the right to fair hearings and resulted in his
loss of liberty. Licking County Prosecutor Kenneth Oswalt covered up the misconduct
of people under his supervision.
Between December 27, 2998 and March 15, 2010, Melanie Angle engaged in a
pattern of misconduct that deprived Joseph of his constitutional rights to remain silent,
to counsel, and to due process, depriving him of his liberty. Chief Steven J. Sarver,
Newark Police Department covered up the misconduct of people under his supervision.
Between February and March 2010, employees of the Licking County Justice
Center failed to recognize the signs and symptoms associated with over medication
from a prescribed and nurse dispensed psychotropic medication, subjecting Joseph to
cruel and unusual punishment. In March 2010, Joseph was interviewed for placement in
the Licking County Community Corrections Center, but placement was denied due to
his numerous psychiatric disabilities. As a result, a prison sentence became much more
likely. The complaint pleads that denying Joseph placement in the Center violated the
Americans with Disabilities Act.
In February 2010, Dr. Kahn placed Joseph on psychiatric medication that he had
never taken before and ordered that the dosage be increased twice in one week without
evaluating him or scheduling another appointment to evaluate him. Dr. Kahn also did
not prescribe Cogentin to ease the side effects of the primary medication.
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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
, 127
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. ,
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).
Discussion.
Judicial immunity. A judge performing judicial duties is absolutely immune
from
suit seeking monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991); Barnes v.
Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997); Collyer v. Darling, 98 F.3d 211, 221 (6th Cir.
1996). Judges are immune from suit even if they act erroneously, corruptly or in excess
of their jurisdiction. Mireles, 502 U.S. at 11; Barnes, 105 F.3d at 1115-16. Consequently,
Judge Marcelain is immune from suit.

Prosecutor immunity. Defendants Christopher

Reamer and Kenneth Oswalt are immune from suit because the complaint pleads that
Reamer deprived Joseph of constitutional rights while acting in the role of prosecutor in
court proceedings. Kalina v. Fletcher, 522 U.S. 118, 129-131 (1997).
Police investigation. Plaintiff’s claims against defendants Melanie Angle and

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Chief Steven J. Sarver fail to state a claim because a judgment for Joseph would
necessarily undermine his criminal conviction. A civil rights action is not a substitute
for habeas corpus. When a prisoner challenges the fact or duration of his confinement,
his sole federal remedy is habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973);
Heck v. Humphrey, 512 U.S. 477, 787 (1994); Edwards v. Balisok, 520 U.S. 641 (1997). A
convicted criminal defendant cannot bring a claim under 42 U.S.C. § 1983 if a judgment
on the claim “would necessarily imply the invalidity” of his criminal conviction and
that conviction has not been set aside. Heck, 512 U.S. at 487. Here a judgment for
plaintiff would necessarily undermine his criminal convictions, and those convictions
have not been set aside. Consequently, the complaint fails to state a claim for relief
under 42 U.S.C. § 1983.
Medical care. The Eighth Amendment forbids prison officials from
“unnecessarily and wantonly inflicting pain” on an inmate by acting with “deliberate
indifference” toward the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,
104 (1976). To demonstrate an Eighth Amendment deprivation, a prisoner must show
that a prison official acted with deliberate indifference to his serious medical needs.
There is both an objective and a subjective component to a cruel and unusual
punishment claim. Scott v. Ambani, 577 F.3d 642, 648 (6th Cir. 2009). The objective
component requires a plaintiff to demonstrate that the medical need was “serious.” Id.
A serious medical need is “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the
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necessity for a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). To
meet the subjective component, a complaint must plead “facts which show that the
prison official had a ‘sufficiently culpable state of mind.’ [Brennan v.] Farmer, 511 U.S.
[825], 834 [(1994)]; Comstock [v. McCrary, 273 F.3d 693], 834 [(6th Cir. 2001).” Prison
officials are liable only if they know of and disregard “an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere negligence does not constitute
deliberate indifference. See, Estelle, 429 U.S. at 106. Further, a prisoner does not state a
claim merely by pleading that he disagrees with the diagnosis or treatment. Estelle, 429
U.S. at 107-08; Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).
Nonetheless, prison officials may not entirely insulate themselves from liability
under § 1983 simply by providing some measure of treatment. Deliberate indifference
may be established in cases where it can be shown that a defendant rendered “grossly
inadequate care” or made a “decision to take an easier but less efficacious course of
treatment.” Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th
Cir.2002)(quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)); see also Chance
v. Armstrong, 143 F.3d 698, 704 (2d Cir. 1998). A complaint states a claim when it alleges
that “prison authorities have denied reasonable requests for medical treatment in the
face of an obvious need for such attention where the inmate is thereby exposed to
undue suffering or the threat of tangible residual injury.” Westlake, 537 F.2d at 860; Scott
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v. Ambani, 577 F.3d at 648.
Here the complaint alleges that employees of the Licking County Justice Center
failed to recognize the signs and symptoms of over medication from a prescribed
psychotropic medication. But no named defendant is alleged to have engaged in any
actionable conduct. The Center itself is not an entity capable of being sued. Further, the
complaint does not explain how the failure to recognize over medication amounted to
cruel and unusual punishment.
The complaint alleges that Dr. Kahn prescribed an unidentified psychotropic
medication in February 2010, instructing that the dosage be increased twice in one
week. But again the complaint does not explain how the failure to recognize over
medication amounted to cruel and unusual punishment. There is no precise science to
prescribing psychoactive medication. Not seeing a patient for a week does not amount
to cruel and unusual punishment. The complaint simply fails to allege that Dr. Kahn
“unnecessarily and wantonly inflict[ed] pain” on Joseph by acting with “deliberate
indifference” toward his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104
(1976).

Accordingly, it is hereby RECOMMENDED that the complaint be

DISMISSED for failure to state a claim under 42 U.S.C. §1983.
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 are not required to answer
the complaint unless later ordered to do so by the Court.
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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
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. See 28 U.S.C. §636(b)(1)(B); Fed. R.
Civ. P. 72(b).
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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