Baker v. Kaye et al

Filing 17

REPORT AND RECOMMENDATION RE 14 DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Objections to R&R due by 8/9/2013. Signed by Magistrate Judge Norah McCann King on 7/23/2013. (sln1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHANE BAKER,
Plaintiff,
vs.

Case No. 2:13-cv-0034
Judge Smith
Magistrate Judge King

JOEL E. KAYE, M.D., et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’
Motion to Dismiss, Doc. No. 14, asking that this action be dismissed
pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil
Procedure.

Plaintiff opposes the motion, Motion in Opposition to

Motion to Dismiss (“Plaintiff’s Response”), Doc. No. 15, and
defendants have filed a reply, Doc. No. 16.

For the reasons that

follow, it is RECOMMENDED that Defendants’ Motion to Dismiss be
GRANTED in part and DENIED in part.
I.

Background
Plaintiff Shane Baker, formerly incarcerated at the Pickaway

Correctional Institution (“PCI”), brings this civil rights action
under 42 U.S.C. § 1983 against various employees of PCI and the Ohio
Department of Rehabilitation and Correction (“ODRC”).
Complaint, Doc. No. 11, ¶¶ 1-3.

Amended

The Amended Complaint also alleges

state law claims for medical negligence and violations of O.A.C. §
5120:1-8-19, O.A.C. § 5120:1-8-09, and O.R.C. § 5120.01.

The Amended

Complaint alleges that, on February 23 or 24, 2011, while plaintiff
was incarcerated at PCI, he fell and broke his hand.
Complaint, ¶¶ 9-10.

Amended

“Immediately after the fall,” plaintiff “was sent

to medical” where a “nurse” “x-rayed his hand, detected several
breaks,” “wrapped his hand in an ace bandage, and told him [that] he
would be referred to a specialist.”
also used.

Id. at ¶ 34.

Id. at ¶¶ 11-13.

A splint was

Plaintiff was later “told by the doctor that

he was denied treatment with a hand specialist.”

Id. at ¶ 14.

As a

direct result, plaintiff alleges, his hand became deformed, he
experienced significant pain for ten months, and corrective surgery
was required after his release from PCI to repair the deformity.

Id.

at ¶ 24.
II.

Discussion
A.

Fed. R. Civ. P. 12(b)(5)

Defendants’ Motion to Dismiss seeks dismissal of the claims
against defendants Joel E. Kaye, M.D., Charles H. Muncrief, D.O., and
S. Douglas Haas, M.D., pursuant to Fed. R. Civ. P. 12(b)(5) for
insufficient service of process.
4-5.

Defendants’ Motion to Dismiss, pp.

Rule 4(m) of the Federal Rules of Civil Procedure requires

service of the summons and complaint on a defendant within 120 days of
the filing of the complaint.

Fed. R. Civ. P. 4(m).

If such service

is not made, the Court “must dismiss the action without prejudice
against [the] defendant or order that service be made within a
specified time.

But if the plaintiff shows good cause for the

failure, the court must extend the time for service for an appropriate
period.”

Id.

2

It does not appear that defendants Dr. Kaye, Dr. Muncrief, or Dr.
Haas have been served with process, and plaintiff – who is represented
by counsel - “has no objection to the dismissal of Defendants Kaye,
Muncrief, or Hass.”

Plaintiff’s Response, p. 1.

Accordingly, it is

RECOMMENDED that the claims asserted against defendants Joel E. Kaye,
M.D., Charles H. Muncrief, D.O., and S. Douglas Haas, M.D., be
DISMISSED without prejudice.
B.

Fed. R. Civ. P. 12(b)(6)

Defendants John Gardner, Mary Roush, Mary Lawrence, and Dr.
Andrew Eddy ask that plaintiff’s remaining claims be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted.
A motion to dismiss under Rule 12(b)(6) attacks the legal
sufficiency of the complaint.

See Roth Steel Prods. v. Sharon Steel

Co., 705 F.2d 134, 155 (6th Cir. 1983).

In determining whether

dismissal on this basis is appropriate, a complaint must be construed
in the light most favorable to the plaintiff, and all well-pleaded
facts must be accepted as true.

See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.
Supp. 734, 738 (S.D. Ohio 1994).

The United States Supreme Court has

explained that “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations
in the complaint.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”

Id. at 555.

3

“Factual allegations

must be enough to raise a right to relief above the speculative
level[.]”

Id.

Accordingly, a complaint must be dismissed if it does

not plead “enough facts to state a claim to relief that is plausible
on its face.”

Id. at 570.

Plaintiff’s remaining federal claims are asserted against John
Gardner, Mary Roush, Mary Lawrence, and Dr. Eddy in their individual
capacities.

Amended Complaint, ¶¶ 25-32; Plaintiff’s Response, pp. 1,

7 (representing that all of plaintiff’s claims are against defendants
in their individual capacities).

John Gardner is identified as the

Chief Medical Officer of the ODRC;
an employee of PCI;
Inspector at PCI;

Mary Roush is identified only as

Mary Lawrence is identified as the Institutional
and Dr. Eddy is identified as a member of the

Collegial Review Board of the ODRC.

Amended Complaint.

Plaintiff’s

federal claims are asserted under § 1983, which provides in relevant
part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

A prima facie case under § 1983 requires evidence

of (1) conduct by an individual acting under color of state law that
causes (2) the deprivation of a right secured by the Constitution or
laws of the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749

F.2d 1199, 1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S.
527, 535 (1981)).

Section 1983 merely provides a vehicle for

4

enforcing individual rights found elsewhere and does not itself
establish any substantive rights.
273, 285 (2002).

See Gonzaga Univ. v. Doe, 536 U.S.

Moreover, liability based on a theory of respondeat

superior is not cognizable under § 1983.

See Turner v. City of

Taylor, 412 F.3d 629, 643 (6th Cir. 2005); Hays v. Jefferson Cnty.,
Ky., 668 F.2d 869, 874 (6th Cir. 1982).

In order to be held liable

under § 1983, a defendant with supervisory authority must have either
“encouraged the specific incident of misconduct or in some other way
directly participated in it.”

Turner, 412 F.3d at 643.

In the case presently before the Court, plaintiff alleges that
“[d]efendants” acted with deliberate indifference to his medical needs
in violation of the Eighth Amendment to the United States
Constitution.

Amended Complaint, ¶¶ 5, 25-32.

prohibits cruel and unusual punishment.

The Eighth Amendment

To prevail on his claims

against each defendant, plaintiff must prove that the defendant acted
with “deliberate indifference to [his] serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).

This standard includes

both an objective and a subjective component.

The objective component

requires that a plaintiff establish a “sufficiently serious” medical
need.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The subjective

component requires that a plaintiff “allege facts which, if true,
would show that the official being sued subjectively perceived facts
from which to infer substantial risk to the prisoner, that he did in
fact draw the inference, and that he then disregarded that risk.”
Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer,
511 U.S. at 837).

Although officials may not deliberately disregard a

5

medical need, “[m]edical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”
at 106.

Estelle, 429 U.S.

Deliberate indifference “describes a state of mind more

blameworthy than negligence.”

Farmer, 511 U.S. at 835.

Nevertheless,

“a plaintiff need not show that the official acted ‘for the very
purpose of causing harm or with knowledge that harm will result.’”
Comstock, 273 F.3d at 703 (quoting Farmer, 511 U.S. at 835).
“Instead, ‘deliberate indifference to a substantial risk of serious
harm to a prisoner is the equivalent of recklessly disregarding that
risk.’”

Id. (quoting Farmer, 511 U.S. at 836).

Liability can result

if a prison official “knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable
measures to abate it.”

Farmer, 511 U.S. at 847.

Defendants argue that the Amended Complaint does not allege facts
sufficient to satisfy the subjective component of an Eighth Amendment
deliberate indifference claim.

Defendants’ Motion to Dismiss, p. 8.

The Court agrees with that determination.
The Amended Complaint alleges that defendants, “through their
actions and acting under color of law, subjected the Plaintiff, and
caused the Plaintiff to be subjected to, the deprivations of his
rights, privileges, and immunities secured by the [Eighth Amendment to
the] United States Constitution[.]”

Amended Complaint, ¶¶ 27-28.

The

Amended Complaint further alleges that “[d]efendants were aware that
[plaintiff] needed treatment for his broken hand, beyond the ace
bandage that he was given, but ignored [plaintiff’s] objective
symptoms, self-reporting, and constant requests for medical

6

attention.”

Id. at ¶ 31.

The Amended Complaint does not allege any facts whatsoever in
support of a claim that defendants Mary Roush or PCI Institutional
Inspector Mary Lawrence either encouraged or directly participated in
the claimed denial of medical care.

Indeed, the record does not even

identify defendant Roush’s position at PCI, nor does it allege that
either defendant Roush or defendant Lawrence could have provided
medical care to plaintiff.

Conclusory allegations that defendants

violated plaintiff’s Eighth Amendment rights and were “aware” that
plaintiff needed additional treatment, see id. at ¶¶ 27-28, 31, are
simply insufficient to state an Eighth Amendment deliberate
indifference claim.

The Amended Complaint does allege that, while

exhausting his administrative remedies, plaintiff “was refused access
to grievances by Institutional Inspector Mary Lawrence.”

Id. at ¶ 20.

However, Plaintiff’s Response clarifies that plaintiff has “no
claim . . . based upon access to a grievance system.”
Response, p. 7.

Plaintiff’s

The Amended Complaint contains no other factual

allegations against defendants Roush or Lawrence, and none whatsoever
relating to any involvement on their part in plaintiff’s medical
treatment.

Accordingly, the Amended Complaint fails to state a

colorable § 1983 claim against defendants Roush and Lawrence.
As to defendants Gardner and Dr. Eddy, the Amended Complaint
alleges that these defendants were “aware” that plaintiff’s injury
required additional, specialized, medical treatment.
Complaint, ¶¶ 27-28, 31.

Amended

The Amended Complaint also alleges that

defendants Gardner and Dr. Eddy “were members of the collegial review

7

board and responsible for the denial of treatment by a hand
specialist.”

Id. at ¶ 15.

These allegations are, in the view of this

Court, sufficient to state a colorable § 1983 claim against defendants
Gardner and Dr. Eddy.
The Amended Complaint also alleges state law claims for medical
negligence and violations of O.A.C. § 5120:1-8-19, O.A.C. § 5120:1-809, and O.R.C. § 5120.01 against defendants, who are “employees” of
PCI.

Amended Complaint, ¶¶ 2, 8, 32-38.

As an initial matter,

plaintiff agrees that the claims under O.A.C. § 5120:1-8-19 and O.R.C.
§ 5120.01 should be dismissed.

Plaintiff’s Response, p. 1.

It is

therefore RECOMMENDED that plaintiff’s claims for violations of O.A.C.
§ 5120:1-8-19 and O.R.C. § 5120.01 be DISMISSED.
As to plaintiff’s claims under O.A.C. § 5120:1-8-09, the parties
disagree whether § 5120:1-8-09 creates a private cause of action.
Defendants’ Motion to Dismiss, p. 11; Plaintiff’s Response, pp. 6-7.
Plaintiff argues that he “had an order from a jail physician for work
with the hand clinic, but [that he] never received attention from the
clinic.”

Plaintiff’s Response, pp. 6-7.

This alleged “failure to

comply with treatment orders,” plaintiff argues, “shows an adequate
violation” of O.A.C. § 5120:1-8-09(G).

Id. at p. 6.

Section 5120:1-8-09 of the Ohio Administrative Code does not
explicitly create a private cause of action. The regulation applies to
full service jails and provides,
Medical care shall be performed by qualified health care
personnel pursuant to written protocol or order of the jail
physician. Verification of current credentials of each
qualified health care personnel shall be maintained on
file.

8

O.A.C. § 5120:1-8-09(G).

“When determining whether, in the absence

of explicit language, a statute grants a private right of action, Ohio
courts have used the test set forth in” Cort v. Ash, 422 U.S. 66
(1975); Grey v. Walgreen Co., 967 N.E.2d 1249, 1252 (Ohio Ct. App.
2011) (citing Strack v. Westfield Cos., 515 N.E.2d 1005 (Ohio Ct. App.
1986)):
First, is the plaintiff “one of the class for whose
especial benefit the statute was enacted,” — that is, does
the statute create a federal right in favor of the
plaintiff? Second, is there any indication of legislative
intent, explicit or implicit, either to create such a
remedy or to deny one?
Third, is it consistent with the
underlying purposes of the legislative scheme to imply such
a remedy for the plaintiff?
And finally, is the cause of
action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on
federal law?
Cort, 422 U.S. at 78 (citations omitted).

More recently, however, the

Ohio Court of Appeals has focused solely on the second Cort factor;
Grey, 967 N.E.2d at 1252-53 (“The United States Supreme Court has
gradually focused on the single factor of whether there was a
legislative intent to grant a private right of action”) (citing
Alexander v. Sandoval, 532 U.S. 275 (2001)); Transamerica Mortg.
Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11 (1979); Touche Ross & Co.
v. Redington, 442 U.S. 560 (1979).
“[T]he relevant inquiry for determining whether a private
right of action exists appears to have two steps: (1) Did
Congress intend to create a personal right? and (2) Did
Congress intend to create a private remedy?
Only if the
answer to both of these questions is ‘yes’ may a court hold
that an implied private right of action exists under a
federal statute.”1

1

The rule articulated by the Ohio Court of Appeals in Grey v. Walgreen Co.,
967 N.E.2d 1249, refers to the intent of Congress and the interpretation of a

9

Id. (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3rd Cir.
2007)).

See also Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 249

(Ohio 1976) (refusing to “read [] a remedy into” O.R.C. § 4101.17
where there was no “clear implication” that the legislature “intended
to create a civil action for damages for the breach of [§] 4101.17”).
As noted supra, plaintiff alleges that defendants violated O.A.C.
§ 5120:1-8-09(G).
pp. 6-7.

Amended Complaint, ¶¶ 36-39; Plaintiff’s Response,

Nothing in that regulation suggests an intention to create a

personal right or a private remedy.

In fact, nothing in Chapter

5120:1-8 of the Ohio Administrative Code, which governs full service
jails, suggests an intention to create a private cause of action.
Chapter 5120:1-8 was enacted under the authority of O.R.C. §
5120.10(A)(1), which provides that the “director of rehabilitation and
correction, by rule, shall promulgate minimum standards for jails in
Ohio.”

The Ohio Revised Code expressly provides that these “minimum

standards,” which includes the provisions of O.A.C. Chapter 5120:1-8,
“serve as criteria for the investigative and supervisory powers and
duties vested . . . in the division of parole and community services
of the department of rehabilitation and correction2 or in another
division of the department to which those powers and duties are
assigned.”

O.R.C. § 5120.10(A)(2).

The express intention of the Ohio legislature, as reflected in
federal statute; however, that court applied the rule in its construction of
an Ohio statute. See id. at 1252-54.
2
The division of parole and community services is vested with, inter alia,
the powers and duties of “investigation and supervision of county and
municipal jails . . . and other correctional institutions and agencies.”
O.R.C. § 5120.10(D)(1).

10

O.R.C. § 5120.10, does not contemplate a private cause of action for a
violation of the provisions of O.A.C. Chapter 5120:1-8.

Furthermore,

plaintiff has not referred to, and the Court has not found, any Ohio
authority even suggesting that O.A.C. § 5120:1-8-09 creates a private
cause of action in a prison inmate.

Under the circumstances, the

Court cannot permit plaintiff’s claims premised on a violation of
O.A.C. § 5120:1-8-09(G) to proceed; to hold otherwise would circumvent
the express intent of the Ohio legislature.

Accordingly, it is

RECOMMENDED that plaintiff’s claims for violations of O.A.C. § 5120:18-09 be DISMISSED.
Finally, plaintiff asserts state law claims for medical
negligence against defendants Gardner and Dr. Eddy.
Complaint, ¶¶ 32-35.

Amended

The Amended Complaint alleges that these

defendants owed to plaintiff a duty to keep him safe, to protect him
from unnecessary harm, and to exercise reasonable and ordinary care
for his life and health.

Id.

The Amended Complaint also alleges that

defendants acted in breach of this duty by negligently failing to
provide medical care for plaintiff’s hand and that, as a result,
plaintiff suffered additional injuries.

Id.

These allegations are,

in the view of this Court, sufficient to state a colorable negligence
claim against defendants Gardner and Dr. Eddy.

The Court notes,

however, that the parties have not addressed the issue of immunity
under state law, despite a reminder by this Court that Ohio law
requires state law claims against state officials to first be brought
before the Ohio Court of Claims for a determination of the issue of

11

immunity under state law.3 Order, Doc. No. 4, pp. 1-2 (citing Cameron
v. Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1169-70 (6th Cir. 1997);
Underfer v. Univ. of Toledo, 36 F. App’x 831, 835 (6th Cir. 2002);
O.R.C. § 2743.02(F)); see also Haynes v. Marshall, 887 F.2d 700, 705
(6th Cir. 1989). The Court therefore concludes that dismissal of
plaintiff’s state law medical negligence claims against defendants
Gardner and Dr. Eddy is not appropriate at this juncture.
WHEREFORE, based on the foregoing, it is RECOMMENDED that
defendants’ Motion to Dismiss, Doc. No. 14, be GRANTED in part and
DENIED in part.

It is SPECIFICALLY RECOMMENDED that the claims

against defendants Joel E. Kaye, M.D., Charles H. Muncrief, D.O., and
S. Douglas Haas, M.D., be DISMISSED without prejudice for
insufficiency of service of process, that all claims against
defendants Mary Lawrence and Mary Roush be DISMISSED with prejudice
for failure to state a claim upon which relief can be granted, and

3

“A federal court exercising pendent jurisdiction sits as a court of the
forum state and is bound to apply its substantive law.” Haynes, 887 F.2d at
705 (citing Guaranty Trust Co. v. York, 326 U.S. 99, 108-09 (1945)). Ohio
Revised Code § 9.86 confers civil immunity to state officers and employees:
Except for civil actions that arise out of the operation of a
motor vehicle and civil actions in which the state is the
plaintiff, no officer or employee shall be liable in any civil
action that arises under the law of this state for damage or
injury caused in the performance of his duties, unless the
officer’s or employee’s actions were manifestly outside the scope
of his employment or official responsibilities, or unless the
officer or employee acted with malicious purpose, in bad faith,
or in a wanton or reckless manner.
O.R.C. § 9.86. Ohio Revised Code § 2743.02(F) “requires that, as a condition
precedent to asserting a cause of action against a state employee in his
individual capacity, the Court of Claims must first determine that the
employee is not entitled to the immunity provided for in Revised Code section
9.86.” Haynes, 887 F.2d at 705.

12

that plaintiff’s state law claims against all defendants for violation
of O.A.C. § 5120:1-8-19, O.A.C. § 5120:1-8-09, and O.R.C. § 5120.01 be
DISMISSED with prejudice for failure to state a claim upon which
relief can be granted.

It is FURTHER RECOMMENDED that, as it relates

to plaintiff’s federal claims under 42 U.S.C. § 1983 and state law
claims of medical negligence against defendants John Gardner and Dr.
Andrew Eddy, the Motion to Dismiss, Doc. No. 14, DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

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 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

July 23, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

13