Cardwell v. Deputy Warden Bradley et al
Filing
36
REPORT AND RECOMMENDATION AND ORDER: the Court recommends that 22 MOTION for Judgment on the Pleadings be granted and that 17 MOTION for Summary Judgment be denied. Objections to R&R due within fourteen (14) days. Further, the following dis covery motions are denied: 18 motion for admission Captain Yates, 23 motion for appointment of counsel, 24 motion for discovery, 27 motion for admissions Officer J. Stevens, 28 motion for interrogatories from Defendant Stevens, 29 motion for interrogatories Defendant Yates, 31 motion for interrogatories, 32 motion for discovery, and 33 motion for admissions. Signed by Magistrate Judge Terence P. Kemp on 4/21/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kenneth Cardwell,
:
Plaintiff,
v.
:
:
Deputy Warden Bradley, et al.,
Defendants.
Case No. 2:14-cv-246
:
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
:
REPORT AND RECOMMENDATION
AND ORDER
This is a pro se prisoner civil rights action brought by
Kenneth Cardwell, a former inmate who was housed at Warren
Correctional Institution during the time relevant to this action.
Mr. Cardwell alleges that prison officials failed to protect him
from being assaulted on two occasions and improperly delayed his
medical care after he was assaulted.
This matter is currently
before the Court on several motions.
More specifically,
currently before the Court are a motion for judgment on the
pleadings filed by Defendant Yates (Doc. 22) and a motion for
summary judgment filed by Mr. Cardwell (Doc. 17).
Mr. Caldwell
also filed the following discovery motions: a motion for
admission Captain Yates (Doc. 18), a motion for discovery (Doc.
24), a motion for admissions from Officer J. Stevens (Doc. 27), a
motion for interrogatories from Defendant Stevens (Doc. 28), a
motion for interrogatories from Defendant Yates (Doc. 29), a
motion for interrogatories (Doc. 31), a motion for discovery
(Doc. 32), and a motion for admissions (Doc. 33).
Finally, Mr.
Cardwell filed a motion for appointment of counsel.
(Doc. 23).
For the reasons set forth below, the Court will recommend that
the motion for judgment on the pleadings filed by Defendant Yates
be granted and the motion for summary judgment filed by Mr.
Cardwell be denied.
In addition, the Court will deny Mr.
Cardwell’s discovery motions and his motion to appoint counsel.
I. Background
On March 12, 2014, Mr. Cardwell filed a civil rights
complaint against Defendants Deputy Warden Bradley, Warden Oppy,
Officer B. Kearns, Officer J. Stevens, and Lieutenant Yates.
Mr.
Cardwell alleges that, while in prison, his life was threatened
by inmate Coleman and his fellow gang members.
In response to
the threats made against him, Mr. Cardwell sent two written
requests – first to Deputy Warden Bradley and next to Warden Oppy
– seeking protection.
Mr. Cardwell has attached these written
requests to the complaint.
Mr. Cardwell asserts that both Deputy
Warden Bradley and Warden Oppy ignored his written requests and
took no action in response.
Thereafter, Mr. Cardwell was
assaulted on two occasions.
Mr. Cardwell alleges that, on February 4, 2013, Mr. Coleman
came running from behind him and struck him in the back of the
head with a lock in a sock.
Mr. Cardwell chased after Mr.
Coleman, but he was unable to catch him.
Mr. Cardwell alleges
that, during the chase, Mr. Coleman and Mr. Cardwell ran past an
attended guard shack; however, no guard stopped to intervene or
provide him with medical assistance.
A corrections officer
eventually stopped Mr. Caldwell after observing blood on Mr.
Cardwell’s face and clothing.
That corrections officer took Mr.
Cardwell to the prison infirmary, where he was treated and
admitted overnight.
Later that evening, two lieutenants asked
Mr. Cardwell to look at computer mug shots in order to identify
the individual who struck him.
Mr. Cardwell identified Mr.
Coleman as the individual responsible for his injury.
Mr. Cardwell further alleges that, on July 9, 2013, inmates
Rhumani and Smallwood assaulted him while in segregation.
Mr.
Cardwell alleges that the inmates were permitted unescorted
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movement with their hands cuffed in front while in segregation,
which allowed Mr. Rhumani and Mr. Smallwood to use their cuffs as
a weapon in an assault on him.
Mr. Cardwell alleges that, after
he was struck and injured by inmates Rhumani and Smallwood,
Officer B. Kearns and Officer J. Stevens delayed his medical
treatment.
Mr. Cardwell was ultimately transported to the
hospital, where he received sutures above his right eye.
Mr. Cardwell asserts that, one or two days later, he met
with Lieutenant Yates, the supervisor in segregation at the time
of the assault.
Lieutenant Yates asked Mr. Cardwell to write a
confidential statement about the events leading up to the assault
and during the assault.
Mr. Cardwell alleges that he did so.
Mr. Cardwell further alleges that, after Lieutenant Yates
reviewed the security tape of the incident, he informed Mr.
Cardwell that he “concur[red] 100% with the way [Mr. Cardwell]”
had described in the events in question.
II. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings filed under Fed. R.
Civ. P. 12(c) attacks the sufficiency of the pleadings and is
evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979).
In ruling upon such a motion, the Court must accept as
true all well-pleaded material allegations of the pleadings of
the opposing party, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment.
Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir. 1973).
The same rules which
apply to judging the sufficiency of the pleadings apply to a Rule
12(c) motion as to a motion filed under Rule 12(b)(6); that is,
the Court must separate factual allegations from legal
conclusions, and may consider as true only those factual
allegations which meet a threshold test for plausibility.
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See,
e.g., Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545 (6th
Cir. 2008), citing, inter alia, Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007).
Further,
because Mr. Cardwell is without counsel, his complaint must be
liberally construed.
(2007).
See Erickson v. Pardus, 551 U.S. 89, 94
It is with these standards in mind that the motion for
judgment on the pleadings must be decided.
Defendant Yates moved for judgment on the pleadings on the
ground that Mr. Cardwell’s complaint does not state a plausible
claim for claim for relief against him.
respond to the motion.
Mr. Cardwell did not
In the complaint, Mr. Cardwell alleges
that Defendant Yates “should be held directly and indirectly
liable due to his scare [sic] presence at segregation most of the
time unavailable for things only he as a supervisor can tend to
concerning the needs inmates [sic] in segregation....”
at 7).
(Doc. 1
This allegation is insufficient to state a claim against
Defendant Yates.
“[L]iability under §1983 must be based on
active unconstitutional behavior and cannot be based upon a ‘mere
failure to act.’”
Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999), quoting Salehpour v. University of Tennessee, 159
F.3d 199, 206 (6th Cir. 1998).
Accordingly, a supervisory
official who did not participate directly in an alleged
constitutional violation may be held liable under 42 U.S.C. §1983
only in very specific situations, and simply being the supervisor
at the time an alleged constitutional violation takes place is
not one of them.
See Monell v. Department of Soc. Servs., 436
U.S. 658 (1978); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984).
Because Mr. Cardwell fails to allege that Defendant Yates
had personal involvement in the alleged constitutional violation
in that he actively engaged in unconstitutional behavior, the
Court will recommend that the motion for judgment on the
pleadings be granted.
(Doc. 22).
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III. Motion for Summary Judgment
Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
dispute.
It may be rendered only when appropriate evidentiary
materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Broad. Sys., Inc., 368 U.S. 464 (1962).
Poller v. Columbia
The moving party bears
the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).
Adickes v. S.H. Kress &
“[I]f the evidence is insufficient to
reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”
Cox v.
Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir.
1995)(citation omitted).
Additionally, the Court must draw all
reasonable inferences from that evidence in favor of the
nonmoving party.
(1962).
United States v. Diebold, Inc., 369 U.S. 654
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Of
course, since “a party seeking summary judgment ... bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
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It is with these standards in mind that the instant motion must
be decided.
Mr. Cardwell filed his motion for summary judgment on
December 17, 2014.
(Doc. 17).
In the motion, Mr. Cardwell
reiterates the facts set forth in the complaint, adds additional
detail to some of those facts, and discusses his requests for
discovery.
He also attaches duplicates of documents attached to
the complaint and the answer filed by Defendants Stevens and
Yates.
Mr. Cardwell’s motion was filed before he effected
service on Deputy Warden Bradley.
Consequently, only Defendants
Stevens and Yates, the two Defendants who had been served at the
time, responded to the motion.
Because the Court recommends
granting the motion for judgment on the pleadings filed by
Defendant Yates, the Court need only consider the motion for
summary judgment and the opposition as they apply to Defendant
Stevens.
In his opposing memorandum, Defendant Stevens states that
discovery had not yet commenced at the time that Mr. Cardwell
filed his motion, and he points out that he denied material
allegations of Mr. Cardwell’s complaint in his answer.
Defendant
Stevens argues that Mr. Cardwell presents no evidence to support
his claim against him based on delayed medical treatment and does
not explain how any delay injured him.
Thus, Defendant Stevens
argues that Mr. Cardwell has failed to present sufficient
evidence to demonstrate that there is no genuine issue as to any
material fact and, consequently, he not entitled to judgment as a
matter of law.
In reply, Mr. Cardwell again reiterates the facts
set forth in his complaint.
(Doc. 26).
He also discusses
outstanding issues pertaining to service in this case.
“To state a claim under §1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.”
Salehpour, 159 F.3d at 206 (internal quotations and citations
omitted).
In this case, Mr. Cardwell’s claim is rooted in a
prisoner’s Eighth Amendment right to be free from cruel and
unusual punishment.
In order to establish that a prisoner has been deprived of
the right to adequate medical treatment, he must demonstrate that
“(1) ‘the deprivation alleged [is], objectively, sufficiently
serious’ such that the inmate ‘is incarcerated under conditions
posing a substantial risk of serious harm’; and (2) the prison
official subjectively demonstrates ‘deliberate indifference to
inmate health or safety.’”
Grabow v. County of Macomb, 580 Fed.
Appx. 300, 307 (6th Cir. Aug. 29, 2014), quoting Farmer v.
Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.2d 811
(1994) (alteration in original).
Thus, the constitutional
standard has both an objective and a subjective component,
focusing not only on how serious the prisoner’s medical needs
were, but also how the defendant understood those needs and what
he did to address them.
702 (6th Cir. 2001).
See Comstock v. McCrary, 273 F.3d 693,
Further, in order to establish a claim for
delayed medical treatment, an inmate who alleges that such a
delay “rose to a constitutional violation must place verifying
medical evidence in the record to establish the detrimental
effect of the delay in medical treatment to succeed.”
Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001).
are, however, exceptions to this requirement.
Napier v.
There
As the Court of
Appeals has observed, where the serious need for medical care
would be obvious even to a layman, a plaintiff need not present
verifying medical evidence.
Blackmore v. Kalamazoo County, 390
F.3d 890, 899-900 (6th Cir. 2004).
Finally, to the extent that
Mr. Cardwell has alleged a claim under the Due Process Clause of
the Fourteenth Amendment, that claim is redundant of the Eighth
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Amendment claim and need not be considered because “the Due
Process Clause affords [prison inmates] no greater protection
than does the Cruel and Unusual Punishment Clause.”
Stewart v.
Wilkinson, No. 2:03-cv-0687, 2008 WL 2674843, *9 (S.D. Ohio July
7, 2008), quoting Whitley v. Albers, 475 U.S. 312, 327 (1986) and
citing Lee v. Baker, 1999 WL 282652 at *1 (6th Cir. Apr. 30,
1999).
Here, Mr. Cardwell fails to produce evidence establishing
that his medical treatment was indeed delayed, nor has he
produced verifying medical evidence to establish the detrimental
effect of the alleged delay.
Alternatively, Mr. Cardwell fails
to produce evidence that his serious need for medical care was so
obvious even to a layman that he need not present verifying
medical evidence.
Consequently, the Court will recommend that
the motion for summary judgment be denied.
(Doc. 17).
IV. Discovery Motions
Mr. Cardwell has filed the following as discovery motions:
a motion for admission from Captain Yates (Doc. 18), a motion for
discovery (Doc. 24), a motion for admissions from Officer J.
Stevens (Doc. 27), a motion for interrogatories from Defendant
Stevens (Doc. 28), a motion for interrogatories from Defendant
Yates (Doc. 29), a motion for interrogatories (Doc. 31), a motion
for discovery (Doc. 32), and a motion for admissions (Doc. 33).
These “motions” do not appear to be, in fact, motions.
Instead, they appear to be Mr. Cardwell’s actual discovery
requests served on Defendants.
If Mr. Cardwell intended them to
be motions, they are clearly premature.
A motion to compel
discovery may not be filed until the opposing party has failed or
refused to produce the requested discovery, and the party who
served the discovery then engages in an extrajudicial effort to
resolve the parties’ disagreement.
Fed. R. Civ. P. 37(a)(1)(“The
motion must include a certification that the movant has in good
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faith conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain it
without court action”).
The motions will therefore be denied,
but to the extent that the motions are actually discovery
requests, the denial of the motions does not relieve properly
served Defendants of their obligation to respond to the requests.
V. Motion for the Appointment of Counsel
Mr. Cardwell also has requested the appointment of counsel.
(Doc. 23).
As a preliminary matter, the Court notes that it
does not have the power to appoint counsel to serve in this case
unless counsel is also willing to serve. The Court’s power under
28 U.S.C. §1915(e)(1) is limited to requesting that an attorney
represent an in forma pauperis litigant. Mallard v. United
States District Court, 490 U.S. 296 (1989). In determining
whether to request that an attorney represent Mr. Cardwell, the
Court is guided by the following principles.
In prisoner litigation, counsel is appointed only in an
exceptional case, and such appointment is not appropriate when
the likelihood of the prisoner’s success on the merits is highly
dubious. Willett v. Wells, 469 F. Supp. 748 (E.D. Tenn. 1977),
aff’d 595 F.2d 1227 (6th Cir. 1979). Such an exceptional case
exists when “denial of proper representation would result in
fundamental unfairness impinging upon the prisoner’s due process
rights....” Childs v. Duckworth, 705 F.2d 915 (7th Cir. 1983),
cited with approval in Mars v. Hanberry, 752 F.2d 254 (6th Cir.
1985). In Childs, the Court identified the following factors to
be considered: (1) whether the plaintiff’s claim appears to be
meritorious; (2) the plaintiffs ability to investigate the
factual matters at issue; (3) whether the case is highly
dependent upon effective cross-examination, such as where proper
resolution depends upon determining which of several witnesses is
being truthful; (4) whether the plaintiff appears capable of
presenting the evidence in a coherent fashion; and (5) the
complexity of the factual and legal issues presented. See also
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Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981), stating that the
existence of a colorable claim is only a threshold which must be
passed in order to permit the Court to consider requesting that
counsel serve, and that, even in a case where the plaintiff’s
claim is colorable, if the plaintiff is able to make an
investigation, the testimony will not be substantially in
conflict, and the plaintiff can present the evidence, counsel
need not be appointed.
Because this action has not yet progressed to the point that
the Court is able to evaluate the merits of plaintiff’s claim,
the motion for appointment of counsel will be denied. Mars v.
Hanberry, 752 F.2d 254 (6th Cir. l985).
VI. Conclusion
Based upon the foregoing, the Court recommends that the
motion for judgment on the pleadings be granted (Doc. 22) and the
motion for summary judgment be denied (Doc. 17).
Further, the
following discovery motions are denied: the motion for admission
Captain Yates (Doc. 18), the motion for discovery (Doc. 24), the
motion for admissions Officer J. Stevens (Doc. 27), the motion
for interrogatories from Defendant Stevens (Doc. 28), the motion
for interrogatories Defendant Yates (Doc. 29), the motion for
interrogatories (Doc. 31), the motion for discovery (Doc. 32),
and the motion for admissions (Doc. 33).
Finally, Mr. Cardwell’s
motion for appointment of counsel also is denied (Doc. 23).
VII. Procedure on Objections
Procedure on Objections to Report and Recommendation
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).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
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A judge
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).
Procedure on Objections to Order
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
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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