Austin et al v. Kasich et al
Filing
17
REPORT AND RECOMMENDATIONS that 12 MOTION to Dismiss Complaint filed by John Kasich be granted & that Governor Kasich be dismissed from this action. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/29/2013. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert Austin,
:
Plaintiff,
:
:
v.
Ohio Governor John Kasich,
et al.,
Case No.
2:12-cv-983
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
:
Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Robert Austin, an inmate currently housed in the
Frazier Health Center at Pickaway Correctional Institution, has
brought this action against several state employees, including
Defendant Ohio Governor John Kasich, in their individual and
official capacities pursuant to 42 U.S.C. § 1983. (Compl. ¶ 30).
Defendant Kasich has filed a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and
Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which
relief can be granted.
briefed.
Defendant’s motion has been fully
For the following reasons, it is recommended that the
Court grant the motion to dismiss the Plaintiff’s claims against
Defendant Governor Kasich.
I.
The Complaint
The following allegations are from Mr. Austin’s complaint.
Because Mr. Austin is without counsel, his complaint must be
liberally construed.
See Haines v. Kerner, 404 U.S. 519 (1972).
Mr. Austin alleges that he suffers from certain medical
conditions and injuries, specifically skin ulcers and
polycythemia vera which is a disease affecting the production of
red blood cells.
(Compl. ¶¶ 65-66, 80-81).
Mr. Austin also
alleges that he requires pain management as a result of his
medical conditions.
(Compl. ¶¶ 60-64, 87-90).
Mr. Austin alleges that due to state budget cuts implemented
by Defendant Governor Kasich, he and other inmates in Ohio
prisons have received inadequate medical care in violation of the
Eighth Amendment. (See Compl. ¶¶ 21-22, 95-96). The complaint
alleges that Governor Kasich and the other Defendants have
developed or maintained policies which exhibit deliberate
indifference to Mr. Austin’s constitutional rights and that the
Defendants have retaliated against Mr. Austin for petitioning the
courts. (Compl. ¶ 92, 94).
Finally, Mr. Austin alleges that
Defendants’ gross negligence led to physical injury and
violations of the Eighth and Fourteenth Amendments. (Compl. ¶
98).
Specifically, Mr. Austin alleges that he has not been
provided with proper medical treatment for his polycythemia vera,
which includes allegations that his “Green Filter” needs to be
replaced.
(Compl. ¶¶
72-74). He also alleges he has received
inadequate treatment for his skin ulcers, resulting in his wounds
improperly healing.
Lastly, Mr. Austin alleges that “since
Defendant Kasich’s cost cutting measures have been implemented by
the other Defendants” his pain medication has been reduced.
(Compl. ¶ 90). While Mr. Austin does not explicitly allege such,
the implication is that he has been receiving an inappropriate
level of pain management.
(See Compl. ¶¶ 87-90).
II.
Standard
A. Lack of Subject Matter Jurisdiction
Where a motion to dismiss under Fed. R. Civ. P. 12(b)(1) is
filed, the plaintiff bears the burden of establishing federal
subject matter jurisdiction by a preponderance of the evidence.
Ferrero v. Henderson, 244 F. Supp. 2d 821, 826 (S.D. Ohio 2002
(citing McNutt v. General Motors Acceptance Corp. of Ind., 298
U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc. 798 F.2d
2
913, 915 (6th Cir. 1986)).
B. Failure to State a Claim
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits
of the claims set forth in the complaint are not at issue in a
motion to dismiss for failure to state a claim. Consequently, a
complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6)
only if there is no law to support the claims made, or if the
facts alleged are insufficient to state a claim, or if on the
face of the complaint there is an insurmountable bar to relief.
See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.
1978).
When analyzing a claim under a 12(b)(6) motion to dismiss, a
court must take all well-pleaded factual allegations as true and
construe those allegations most favorably toward the non-movant.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Gunasekera v. Irwin,
551 F.3d 461, 466 (6th Cir. 2009).
Federal Rule of Civil
Procedure 8(a) admonishes a court to look only for a “short and
plain statement of the claim showing that the pleader is entitled
to relief,” rather than requiring the pleading of specific facts.
Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Rule 12(b)(6) must
be read in conjunction with Rule 8(a). The moving party is
entitled to relief only when the complaint fails to meet this
liberal standard.
5A Wright & Miller, Federal Practice and
Procedure § 1356 (1990).
On the other hand, more than bare assertions of legal
conclusions are required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988).
"In practice, a complaint must contain either direct
or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory."
3
Id.
(emphasis in original, quotes omitted).
When a court considers a 12(b)(6) motion to dismiss, it “may
begin by identifying allegations that, because they are mere
conclusions, are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 556 U.S. 662, 665 (2009).
However, “[w]hen
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.”
Id. To survive a motion to
dismiss, a plaintiff’s claim “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action” will not suffice.
Twombly, 550 U.S. 544, 555.
Bell Atlantic Corp. v.
A complaint must be dismissed if it
does not plead “enough facts to state a claim to relief that is
plausible on its face.”
Twombly, 550 U.S. at 570.
It is with
these standards in mind that the 12(b)(6) motion to dismiss will
be decided.
III.
A.
Discussion
Lack of Subject Matter Jurisdiction
Defendant Kasich first seeks dismissal of the official
capacity claims against him, under Eleventh Amendment immunity,
for lack of subject matter jurisdiction.
Mr. Austin argues that
Eleventh Amendment immunity does not cover official capacity
claims seeking prospective relief against state officials. (Pls.’
Resp. in Opposition, Doc. No. 14 at 10).
The Eleventh Amendment bars all suits, whether for
injunctive or monetary relief against a state and its
departments.
Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 152
n.2 (6th Cir. 1995), citing Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-01 (1984).
And it bars suits for
monetary damages against individuals in their official
capacities. However, it does not bar suits seeking prospective
injunctive or declaratory relief against state officials for
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constitutional violations. Cox, 53 F. 3d at 152, n.2, citing
Thoikol Corp. v. Department of Treasury, 987 F.2d 376 (6th Cir.
1993); Ex Parte Young, 209 U.S. 123 (1908)).1
The Supreme Court explained this immunity exception in Ex
Parte Young. When a state official acts in violation of the
Federal Constitution, he “comes into conflict with the superior
authority of that Constitution,” and the state does not have the
power “to impart to him any immunity from responsibility to the
supreme authority of the United States.”
U.S. at 160.
Ex Parte Young, 209
Defendant Governor Kasich does not dispute this as
a matter of law, but argues that Mr. Austin has failed to
adequately claim prospective declaratory or injunctive relief as
to Governor Kasich. (Def’s Reply Doc. No. 15 at 2-4).
In determining if the Ex Parte Young exception applies, a
court considers whether the complaint “alleges an ongoing
violation of federal law and seeks relief properly characterized
as prospective.”
League of Women Voters of Ohio v. Brunner, 548
F.3d 463, 474 (6th Cir. 2008), citing Verizon Md., Inc. v. Public
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)(internal quotations
omitted).
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
1
Plaintiffs’ Response in Opposition to Defendant Kasich’s Motion to
Dismiss includes a lengthy discussion of Monell v. Department of Soc. Services
of City of N.Y. and municipal liability. 436 U.S. 658 (1978). Monell is not
relevant to Mr. Austin’s claim because the party at issue, Governor Kasich, is
a state government official, not a municipal government official.
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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.
Moreover, the
Ex parte Young fiction does not apply unless the officer sued has
"some connection with the enforcement of the act."
Ex parte
Young, 209 U.S. at 157.
In Paragraph 21 of the complaint under the heading "Parties
to the Action," Mr. Austin alleges the following:
Defendant John Kasich is the Governor of the State
of Ohio. In an effort to cut the State of Ohio's
deficit, Defendant Kasich implemented cost cutting
measures that are having a direct and detrimental
effect on the medical care received by all inmates in
the custody and/or care of Ohio prisons. He has
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.
In Paragraph 95 under the heading "First Cause of Action (42 USC
§§1983, 1988; First, Eighth and Fourteenth Amendments)," Mr.
Austin further alleges as follows:
Defendant Kasich, as the Governor of Ohio and in an
effort to cut the State of Ohio's deficit, implemented
cost cutting measures that are having a direct and
detrimental effect on the medical care received by all
inmates in the custody and/or care of Ohio prisons.
Based on these allegations, Governor Kasich argues that Mr.
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Austin’s complaint is based entirely on past conduct and
therefore does not fall within the exception outlined in Ex Parte
Young.
The Court agrees.
"[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,
293 F.3d 944, 949 (6th Cir. 2001).
Mr. Austin simply is not seeking prospective relief against
Governor Kasich here even though his complaint sets forth claims
for injunctive relief.
For example, Mr. Austin seeks an
injunction ordering defendants to "immediately cease all forms of
denial of medical care based on costs," implement a
constitutional policy that allows inmates to attend and
participate in the ‘collegial review' process," provide any
needed medical care and devices, and "immediately cease use of
the urgent care clinic at Franklin Medical Center."
Complaint, ¶9, p. 17.
See
However, the Court 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 Mr. Austin’s claims relates to the
alleged denial of medical treatment in the past which may or may
not have resulted from alleged budget cuts instituted by Governor
Kasich.
In order for Mr. Austin to prevail on any claim against
Governor Kasich, the Court would have to issue a declaration that
Governor Kasich's alleged cost cutting measures were taken in
violation of Mr. Austin’s Eighth Amendment rights.
Only upon
such a finding could the Court conclude that Mr. Austin would be
entitled to any injunctive relief he may be seeking.
Stated
another way, Mr. Austin is seeking relief "for a past, one-time
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decision of the [Governor] that purportedly violated [his]
federal constitutional rights."
500, 509 (6th Cir. 2008).
retrospective relief.
S & M Brands, Inc., 527 F.3d
This is clearly a request for
The Eleventh Amendment not only bars
retroactive relief where the plaintiff is seeking monetary
damages, but all retroactive relief.
Id.
Further, Young only "abrogates a state official's Eleventh
Amendment immunity when a suit challenges the constitutionality
of a state official's action."
Children's Healthcare is a Legal
Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996).
As
explained in Brown v. Strickland, 2010 WL 2629878:
For the Young exception to apply, "the state official
sued [must] have ‘some connection' with the enforcement
of the allegedly unconstitutional Act." Allied Artists
Picture Corp. v. Rhodes, 679 F.2d 656, 665 n. 25 (6th
Cir.1982), quoting Ex parte Young, 209 U.S. at 157);
Kelley v. Metropolitan County Bd. of Educ., 836 F.2d
986, 990–91 (6th Cir. 1987) (declining to apply Young
when defendants were not threatening to enforce any
unconstitutional act). Courts have not read Young
expansively. See Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d
67 (1984). ("While the rule permitting suits alleging
conduct contrary to ‘the supreme authority of the
United States' has survived, the theory of Young has
not been provided an expansive interpretation.").
Furthermore, the Sixth Circuit has expressly held that
the phrase " ‘some connection with the enforcement of
the act' does not diminish the requirement that the
official threaten and be about to commence
proceedings." Children's Healthcare is a Legal Duty,
Inc., 92 F.3d at 1416, citing Ex parte Young, 209 U.S.
at 155–56).
Id. at *3.
In this case, to the extent that the complaint could
be read as seeking injunctive relief against Governor Kasich, Mr.
Austin has not alleged that Governor Kasich has any
responsibility for the enforcement of any law or policy relating
to the provision of medical care for Ohio prison inmates.
For all of these reasons, the Court will grant Governor
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Kasich's motion to dismiss as it relates to any claims for
monetary, declaratory, or injunctive relief against Governor
Kasich in his official capacity.
B.
Failure to State a Claim
Defendant Governor Kasich also moves to dismiss Mr. Austin’s
complaint for failure to state a claim upon which relief can be
granted.
As explained below, all of Mr. Austin’s claims against
Governor Kasich in his personal capacity must be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim.
Respondeat superior cannot be the basis of a § 1983 claim.
Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008). Rather,
proof of personal involvement in unconstitutional activity is
required for a supervisor, such as Governor Kasich, to acquire
personal liability. Id. A § 1983 plaintiff must at least show
that a supervisory official implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct of his
subordinate. Id. Mr. Austin’s claims against Governor Kasich are
either legal conclusions or do not allege direct involvement in
constitutional violations. Therefore, they must be dismissed for
failure to state a claim upon with relief can be granted.
Mr. Austin essentially makes four types of allegations
against Governor Kasich in his complaint. First, he states,
“Defendant Kasich implemented cost cutting measures that are
having a direct and detrimental effect on the medical care
received by all inmates in the custody or care of Ohio prisons.”
(Compl. ¶ 21; See also ¶¶ 90, 95 (containing similar
statements)).
Even construed liberally, these statements only
allege indirect involvement and cannot survive a motion to
dismiss.
Grinter, 532 F.3d at 575. Mr. Austin provides no facts,
taken as true, which meet the minimum requirement of showing
Governor Kasich implicitly authorized, approved, or knowingly
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acquiesced in unconstitutional conduct of prison officials.
Id.
Furthermore, this Court has dismissed similar claims. It
dismissed a § 1983 claim against Governor Kasich which was based
solely on the fact that he signed budget cuts into law.
Depew v.
Krisher, S.D. Ohio No. 2:12-cv-250, adopted in 2012 WL 2890978
(July 16, 2012)(Marbley, J.).
This Court also dismissed a § 1983
claim against former Ohio Governor Strickland which alleged that
budget cuts led to prison overcrowding in violation of the Eighth
Amendment.
Davis v. Strickland, S.D. Ohio No. 2:09-cv-015,
adopted in 2012 WL 2998980 (Sept. 15, 2009) (Frost, J.).
Second, Mr. Austin alleges that Governor Kasich “has 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.” (Compl. ¶ 21). This is a conclusory
statement that is not supported by any factual allegations.
It
therefore cannot survive a 12(b)(6) motion to dismiss. Iqbal, 556
U.S. at 664; Twombly, 550 U.S. at 555, 567.
Third, Mr. Austin states that Governor Kasich and other
named defendants “developed and/or maintained conditions,
actions, policies, customs and/or practices exhibiting deliberate
indifference to the constitutional rights of the plaintiffs and
other inmates in the custody and/or care of Ohio prisons.”
(Compl. ¶ 92). This, too, is a mere legal conclusion and cannot
survive a motion to dismiss. Iqbal, 556 U.S. at 664; Twombly, 550
U.S. at 555, 567.
Fourth, Mr. Austin makes a very general allegation of
retaliation.
“Defendants have and/or will retaliate against the
Plaintiffs and others for exercising their right to petition the
courts for redress of injuries.” (Compl. ¶ 94).
Again, this is a
mere legal conclusion and cannot survive a motion to dismiss.
Iqbal, 556 U.S. at 664; Twombly, 550 U.S. at 555, 567.
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There are no factual allegations in Mr. Austin’s complaint
of direct involvement by Governor Kasich.
Therefore, all of Mr.
Austin’s claims against Governor Kasich must be DISMISSED
pursuant to Fed. R. Civ. P. 12(b)(6).
IV.
Recommended Order
It is therefore recommended that Defendant Governor Kasich’s
Motion to Dismiss (Doc. No. 12) be granted and that Governor
Kasich be dismissed from this action.
V.
Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
A judge
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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