Dugas v. Wittrup

Filing 14

OPINION AND ORDER DENYING 9 Request for Leave to Amend the Complaint. Signed by Magistrate Judge Norah McCann King on 2/2/2015. (pes1)(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
GREG DUGAS,
Plaintiff,
vs.

Civil Action 2:15-CV-67
Judge Sargus
Magistrate Judge King

BRIAN WITTRUP,
Defendant.

OPINION AND ORDER
Plaintiff, an inmate currently incarcerated at the Chillicothe
Correctional Institution (“CCI”), brings this action under 42 U.S.C. §
1983 against Brian Wittrup,1 Chief of the Bureau of Classification for
the Ohio Department of Rehabilitation and Corrections (“ODRC”),
alleging that defendant was deliberately indifferent to a serious risk
of harm to plaintiff’s safety in violation of plaintiff’s
constitutional rights.

This matter is now before the Court on

plaintiff’s request for leave to amend his complaint, presented in his
reply in support of his motion for interim injunctive relief,

ECF 9

(“Motion to Amend”).
In October 2014, while plaintiff was incarcerated at the Belmont
Correctional Institution (“BeCI”), an inmate who was allegedly part of
a gang known as the “Bloods,” demanded that plaintiff hold drugs for
him.

Complaint, ECF 1, pp. 4-5.

Plaintiff alleges that, after he

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The Ohio Attorney General has made an appearance on behalf of defendant
Wittrup who has not yet been served with process. ECF 5, p. 1 (citing O.R.C.
§ 109.361).

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received the drugs, which had a “prison street value of three-thousand
dollars[,]” he flushed them down the toilet.
later testified against the inmate.

Id.

Id. at 5.

Plaintiff

The inmate’s security level

was increased and he was transferred to a higher security facility.
Id.

Plaintiff contends that, as a result of his testimony against a

gang member and to protect him against retaliatory attacks from fellow
gang members at BeCI, he believed that he would be awarded protective
control status. Id. at 5-6, 12, 14.

However, plaintiff was not

granted that status, but he was transferred to the general population
at CCI.

Id.; Motion to Amend, p. 8.

On November 8, 2014, five days

after his arrival at CCI, plaintiff alleges that the following
incident occurred:
[W]hile at the Chillicothe facilities’ game room (pool
hall), while playing pool, three black inmates walked to
the door of the game room asking for “Missouri” – which was
Dugas’ known nickname at the Belmont facility – but Dugas
had not told anyone at the Chillicothe facility that his
home state or his nickname was “Missouri,” so fortunately
for Dugas he was not identified by the three black inmates.
When they left, Dugas casually asked the individual he was
playing pool with who they were and the individual he was
playing pool with said they were Blood “enforcers” and that
he didn’t know who “Missouri” was but he wouldn’t want to
be “Missouri.”
Complaint, p. 15.

Plaintiff’s subsequent refusal to lockdown in his

regular assigned area was construed as a request for protective
control.

Id. at 15-16.

Plaintiff provided a sworn statement “of the

events” to CCI’s protective control committee, but his request was
denied.

Id. at 16. His administrative appeal from that decision was

also denied.

Id.

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On January 7, 2015, plaintiff filed the Complaint pursuant to 42
U.S.C. § 1983.

Although plaintiff’s Complaint and supporting

declaration are difficult to follow, he appears to allege that
defendant Wittrup was deliberately indifferent to a substantial risk
of serious harm to plaintiff when this defendant denied plaintiff’s
request for protective control status and left plaintiff in CCI’s
general population.

Plaintiff also alleges that the State of Ohio’s

classification and transfer policies are flawed, creating unsafe
environments in its facilities.

Plaintiff seeks, inter alia, an order

directing defendant to re-classify plaintiff to protective control
status and to transfer him to an institution with such protection;
plaintiff also seeks

punitive damages in the amount of $250,000.00.

Complaint, pp. 9-10.
Plaintiff now asks to amend the Complaint to joint two new
defendants and to amend his request for punitive damages.
Amend, pp. 7-14.

Motion to

Although Rule 15(a) provides that a “court should

freely grant leave [to amend] when justice so requires[,]” see Fed. R.
Civ. P. 15(a)(2), the grant or denial of a request to amend a
complaint is left to the broad discretion of the trial court.

Gen.

Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990).

In

exercising its discretion, the trial court may consider such factors
as “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [and] futility of amendment.”

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Foman v. Davis, 371

U.S. 178, 182 (1962).

“A proposed amendment is futile if the

amendment could not withstand a Rule 12(b)(6) motion to dismiss.”
Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir.
2000) (citing Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987
F.2d 376, 382-83 (6th Cir. 1993)).

A plaintiff’s proposed claim

therefore “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell

“Factual

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

Id.

A court must therefore dismiss a

complaint – and deny leave to amend a complaint as futile - if the
complaint does not plead “enough facts to state a claim to relief that
is plausible on its face.”

Id. at 570.

In the case presently before the Court, plaintiff’s proposed
amendments are futile.

Plaintiff first seeks to add as defendants

BeCI “Caseworker Ruiz” and CCI “Caseworker Shane Stevens”
Amend, pp. 7-13.

Motion to

Plaintiff claims that these caseworkers were

deliberately indifferent to his safety when they recommended denying
his request for protective control status despite knowing about an
alleged threat of gang retaliation against him.
disagrees.

Id.

This Court

For the reasons previously articulated in the Order and

Report and Recommendation, ECF 13, pp. 10-14, plaintiff has not met
the objective prong of his deliberate indifference claim.

Moreover,

where plaintiff has not alleged that these caseworkers were aware of
facts that plaintiff faced a substantial risk of serious harm or that

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these caseworkers drew such an inference, plaintiff cannot satisfy the
subjective prong of his claim.
825, 830, 837 (1994).

See, e.g., Farmer v. Brennan, 511 U.S.

For example, plaintiff concedes that Caseworker

Ruiz investigated the drug incident at BeCI involving plaintiff and an
alleged member of the Bloods gang and recommended that plaintiff be
transferred to another facility.

Motion to Amend, pp. 8-9.

Similarly, Caseworker Stevens investigated plaintiff’s request for
protective control status at CCI.

Id. at 10-11.

In other words, far

from ignoring plaintiff’s safety concerns, these caseworkers took
steps to ensure plaintiff’s safety.

For all these reasons,

plaintiff’s proposed deliberate indifference claims against
Caseworkers Ruiz and Stevens are futile.

Finally, in light of this

conclusion, the Court also concludes that plaintiff’s request to
increase his punitive damages claim from $250,000.00 to one million
dollars is likewise without merit.
WHEREUPON, plaintiff’s request for leave to amend the complaint,
ECF 9, is DENIED.

February 2, 2015

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

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