Younker v. Berry

Filing 4

ORDER and REPORT AND RECOMMENDATION re 3 Complaint: Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. The Magistrate Judge RECOMMENDS that this case be DISMISSED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/10/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

AARON D. YOUNKER,
Plaintiff,
Civil Action 2:13-cv-1127
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

PAUL BERRY,
Defendant.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Aaron D. Younker, an Ohio resident and former prison inmate who is
proceeding without the assistance of counsel, brings this action under 42 U.S.C. § 1983 against
Dr. Paul Berry, a physician who performed a surgery to repair Plaintiff’s hernia. This matter is
before the Court for consideration of Plaintiff’s Motion for Leave to Proceed In Forma Pauperis.
(ECF No. 1.) The Motion is GRANTED. Accordingly, it is ORDERED that judicial officers
who render services in this action shall do so as if the costs had been prepaid. This matter is also
before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2) to
identify cognizable claims and to recommend dismissal of Plaintiff’s 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. 28 U.S.C. § 1915(e)(2).
Having performed the initial screen, for the reasons that follow, it is RECOMMENDED that the
Court DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim upon which relief
can be granted.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

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Formerly 28 U.S.C. § 1915(d).
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court
holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”
Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April
1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

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II.
According to Plaintiff’s Complaint, in September 2010, Dr. Berry performed surgery to
repair Plaintiff’s hernia. After this surgery, Dr. Berry informed Plaintiff of a surgical
complication. Plaintiff alleges that Dr. Berry ignored his requests for further information about
the complication. Thereafter, Plaintiff experienced pain and swelling that persisted for two
years. An ultrasound performed after Plaintiff’s release from prison revealed that the hernia
surgery had obstructed the blood supply to Plaintiff’s right testicle, causing harm to the testicle.
Plaintiff first brought suit against Dr. Berry in 2011, asserting claims arising from the
unsuccessful 2010 hernia surgery Dr. Berry performed. Younker v. Ohio State Univ. Med.
Center, No. 2:11-cv-749 (“11-749 Case”). The Undersigned recommended dismissal of his §
1983 claims, explaining that “[t]he ultimate failure of Plaintiff’s surgery is not enough for
Plaintiff to reasonably infer that Defendant Berry was deliberately indifferent to Plaintiff’s
medical needs.” (11-749 Case, Sept. 29, 2011 Report & Rec. 6, ECF No. 6). The Undersigned
also recommended dismissal of any state-law malpractice claims given Plaintiff’s failure to
provide an affidavit of merit. (Id.) Plaintiff failed to timely object to the Report and
Recommendation, prompting the Court to dismiss Plaintiff’s claims against Dr. Berry. (11-749
Case, Oct. 26, 2011 Order, ECF No. 10.) The Court indicated, however, that the dismissal was
“without prejudice.” (Id. at 2.)
Plaintiff filed suit again on July 29, 2013, asserting claims of medical indifference under
§ 1983 against the Ohio Department of Rehabilitation and Corrections and various doctors,
including Dr. Berry. Younker v. Ohio Dep’t of Rehab. & Corrs., No. 2:13-cv-746 (“13-746
Case”). The Undersigned recommended dismissal of Plaintiff’s claims against Dr. Berry
pursuant to § 1915(e)(2) for failure to plead sufficient facts upon which the Court could infer that
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Dr. Berry violated Plaintiff’s constitutional rights. (13-746 Case, Aug. 13, 2013 Report & Rec.
4–5, ECF No. 4.) The Undersigned explained that Plaintiff “fail[ed] to mention Dr. Berry in the
body of his Complaint, much less allege any facts against him.” (Id. at 5.) Thus, in the 13-746
Case, as contrasted with the 11-749 Case, the Undersigned did not examine the merits of any
claim against Dr. Berry. Plaintiff did not object to the Report and Recommendation, prompting
the Court to dismiss his claims against Dr. Berry. (13-746 Case, Sept. 11, 2013 Order, ECF No.
7.)
Plaintiff filed the instant action approximately two months later, on November 12, 2013.
(ECF No. 1.) In this case, Plaintiff asserts claims against Dr. Berry in his individual capacity
under 42 U.S.C. § 1983. He alleges that Dr. Berry failed to provide adequate medical care in
violation of his constitutional rights. Plaintiff requests leave to amend his Complaint to add Dr.
Berry’s assistant as a defendant upon discovery of her identity. Plaintiff alleges that Dr. Berry
and his assistant are responsible for the damage to his testicle because it was their incompetence
or plain error that ultimately caused the damage. Plaintiff speculates that if Dr. Berry had
ordered testing or scheduled a follow-up surgery to fix the complication, he would not have
experienced harm to his testicle. In terms of relief, Plaintiff seeks $1 million in compensatory
damages.
III.
Because Plaintiff has failed to plead a facially plausible medical indifference claim
against Dr. Berry, the Court must dismiss this action under § 1915(e)(2) for failure to state a

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claim.2
The Eighth Amendment, through the Due Process Clause of the Fourteenth Amendment,
prohibits state officials from inflicting “cruel and unusual punishments” on prison inmates. U.S.
Const. amends. VIII and XIV; Wilson v. Seiter, 501 U.S. 294, 296 (1991). “The Eighth
Amendment forbids prison officials from unnecessarily and wantonly inflicting pain on an
inmate by acting with deliberate indifference toward [his] serious medical needs.” Jones v.
Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010) (internal quotations omitted). An official
who causes significant harm to an inmate does not, however, violate the Eighth Amendment
unless he acts with a “culpable state of mind in inflicting that harm.” Phaneuf v. Collins, 509 F.
A’ppx 427, 431 (6th Cir. 2012) (citing Wilson, 501 U.S. at 296). “A prison doctor violates the
Eighth Amendment when [he or] she exhibits ‘deliberate indifference to [the] serious medical
needs’ of a prisoner.” Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (quoting Comstock
v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)); Phaneuf, 509 F. App’x at 431 (analyzing the
mental states required to establish an Eighth Amendment violation within different contexts);
Minneci v. Pollard, 132 S.Ct. 617, 625 (2012) (quoting Farmer v. Brennan, 511 U.S. 825, 834,
(1994)) (noting that a prisoner seeking to show an Eighth Amendment violation must typically
demonstrate that the defendant acted with deliberate indifference). To show deliberate

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Because the dismissal of Plaintiff’s claims against Dr. Berry in the 11-749 Case was
without prejudice and the Court did not examine the merits of Plaintiff’s claim against Dr. Berry
in the 13-746 Case, the doctrine of res judicata does not operate to bar Plaintiff’s claims against
Dr. Berry in the instant case. See Montana v. United States, 440 U.S. 147, 153 (1979) (doctrine
of res judicata requires “a final judgment on the merits”); Stephens v. Hayes, 374 F. App’x 620,
622 (6th Cir. 2010) (when dismissal of initial complaint under § 1915(e)(2) is not a dismissal on
the merits, “it arguably lacks res judicata effect except as to frivolousness determinations for
future in forma pauperis petitions”).
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indifference, “an inmate must prove that the official actually perceived and yet still intentionally
disregarded the substantial risk of serious harm that led to the inmate’s injury.” Phaneuf, 509 F.
App’x at 432.
Applied here, Plaintiff’s Complaint does not contain sufficient factual content upon
which the Court could reasonably infer that Dr. Berry perceived yet intentionally disregarded a
substantial risk of harm to Plaintiff. Although Plaintiff alleges that Dr. Berry informed him of a
surgical complication prior to his discharge from the hospital, nothing in his Complaint suggests
that Dr. Berry, at that time, appreciated the risk of harm to Plaintiff’s testicle or that he was
aware that Plaintiff continued to suffer from complications for two years after his discharge. As
the Undersigned explained in the 11-749 Case, the ultimate failure of Plaintiff’s hernia surgery
does not supply a basis from which the Court can reasonably infer that Dr. Berry intentionally
disregarded a substantial risk of harm. (11-749 Case, Sept. 29, 2011 Report & Rec. 6, ECF No.
6.) Plaintiff’s allegation that Dr. Berry’s incompetence or negligence ultimately caused the harm
to Plaintiff’s testicle likewise does not supply a basis from which the Court can reasonably infer
that Dr. Berry acted with deliberate indifference. See Santiago, 734 F.3d at 591 (quoting
Comstock, 273 F.3d at 702)) (“‘[W]hen a prison doctor provides treatment, albeit carelessly or
inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner’s
needs, but merely a degree of incompetence which does not rise to the level of a constitutional
violation.’”). Because Plaintiff has failed to plead a facially plausible medical indifference
claim, the Undersigned recommends that the Court dismiss this action pursuant to 28 U.S.C. §
1915(e)(2) for failure to state a claim.

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IV.
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this
action pursuant to § 1915(e)(2) for failure to state a claim upon which relief can be granted. To
the extent Plaintiff intended to assert a state-law medical malpractice claim, it is further
RECOMMENDED that the Court decline to exercise supplemental jurisdiction under 28 U.S.C.
§ 1367(c)(3) over any such state-law claim and that the Court DISMISS any such claim without
prejudice to Plaintiff asserting such a claim in state court. See Brooks v. Rothe, 577 F.3d 701,
709 (6th Cir. 2009) (“If the federal claims are dismissed before trial, the state claims generally
should be dismissed as well.”) (internal quotations marks and citation omitted). The Clerk is
DIRECTED to send a copy of this order to the Ohio Attorney General’s Office, 150 E. Gay St.,
16th Floor, Columbus, Ohio 43215.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
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court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: December 10, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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