Combs v. Bunting et al
Filing
47
ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that plaintiff's Motion for Interim Injunctive Relief, ECF No. 29 be DENIED and the Motion to Dismiss, ECF No. 32 be GRANTED. Plaintiff's Motion to Supplement Pending Motions, ECF No. 39 , is GRANTED Objections to R&R due by 1/25/2016. Signed by Magistrate Judge Norah McCann King on 1/8/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on 1/8/2016 (pes).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HAROLD COMBS
Plaintiff,
Case No. 2:15-cv-00702
Judge Marbley
Magistrate Judge King
v.
JASON BUNTING, et al.,
Defendants.
ORDER AND
REPORT AND RECOMMENDATIONS
This matter is before the Court on plaintiff’s Order to Show
Cause for an [sic] Preliminary Injunction and Temporary Restraining
Order, ECF No. 29 (“Motion for Interim Injunctive Relief”), on
plaintiff’s Motion to Supplement Pending Motions, ECF No. 29, and on
certain defendants’ Motion to Dismiss, ECF No. 32.1 For the following
reasons, it is RECOMMENDED that plaintiff’s Motion for Interim
Injunctive Relief be DENIED and that the Motion to Dismiss be GRANTED.
PLAINTIFF’S CLAIMS
This is a prisoner civil rights action asserting claims of unsafe
housing assignments, denial of medical care, retaliatory transfers,
and denial of access to the prison library. See generally Amended
Complaint, ECF No. 8. Named as defendants are a state agency and
employees of the Ohio Department of Rehabilitation and Correction
1
The other defendants filed an answer to the Amended Complaint. Answer, ECF
No. 33.
1
(“ODRC”), the Marion Correctional Institution (“MCI”), and the
Pickaway Correctional Institution (“PCI”).
The Amended Complaint alleges that defendant Bunting, the warden
at MCI, failed to investigate plaintiff’s complaints about dangerous
housing conditions, id. at PAGEID# 129-30, and that “Mr. Chattman,”
the deputy warden at MCI, knew of plaintiff’s complaints regarding
medical care and housing, but failed to investigate or intervene
before plaintiff injured himself, id. at PAGEID# 130. “R.D. Smith,”
the “Institutional Inspector, MCI,” was “fully aware of plaintiff’s
struggles with the medical department,” and also failed to investigate
plaintiff’s claims that he was entitled to particular protection under
the Americans with Disabilities Act (“ADA”), had been denied medical
care, and was housed in unsafe conditions. Id.
The Amended Complaint also alleges that defendant Polly Schmalz,
“Health Care Administrator, MCI,” who took a “personal dislike of
plaintiff,” discontinued plaintiff’s medications and treatment, and
denied plaintiff “ADA status,” which resulted in plaintiff’s unsafe
housing which, in turn, led to a rotator cuff tear in plaintiff’s
right shoulder. Id. at PAGEID# 131. Defendant Ferguson “refused to
accept or acknowledge information from the safety officer at MCI, that
plaintiff Combs was ADA classified and should not be housed in dorm 2,
where he fell and sustained a shoulder injury.” Id. It is further
alleged that defendant Ferguson retaliated against plaintiff by
threatening to transfer him to “North Central Correctional Complex.”
Id. at PAGEID# 131-32.
The defendant “Ohio Department of Classification” is alleged to
2
have retaliated against plaintiff by transferring plaintiff four times
in less than two years in a purposeful attempt to cause plaintiff pain
and suffering. Id. at PAGEID# 132. Defendant members of the “Collegial
Review Board,” Dr. Eddy, Dr. Woods, Mona Parks, and John Garner, are
alleged to have refused to provide to plaintiff an “MRI and possible
surgery to his right shoulder injury.” Id. at PAGEID# 133.
Plaintiff alleges that he spoke with and was promised assistance
by defendant Lisath, warden of PCI, but that defendant Lisath failed
to investigate or assist plaintiff. Id. at PAGEID# 133-34.
“Ms. Harris, ADA Inmate Coordinator,” is alleged to have failed
to answer plaintiff’s “reasonable accommodation request forms within
ten (10) working days,” in violation of official policy at PCI. Id. at
PAGEID# 134. Defendant Dr. Hale, who is allegedly responsible for the
medical treatment of plaintiff at PCI and who prescribed many of his
medications, id. at PAGEID# 134-35, is alleged to have discontinued
plaintiff’s medical treatment and failed to provide plaintiff with
adequate medical care. Id.
“Mary Lawrance, Institutional Inspector PCI” is alleged to have
threatened to place plaintiff in segregation for submitting too many
complaints, used her authority to “deny his and other inmates’ state
and federal constitutional rights,” and discouraged inmates at PCI
from submitting complaints. Id. at PAGEID# 135.
The Amended Complaint alleges that defendant Frazier Hospital
Center is responsible for plaintiff’s denial of adequate medical care.
Id. at PAGEID# 136.
Finally, plaintiff alleges that defendant Pickaway Institutional
3
Librarian “has rules, policies, and procedures that deny inmates with
disabilities access to the library facility” because the facility is
located on the second floor of PCI and plaintiff cannot climb the
stairs to the library. Id.
MOTIONS
On July 30, 2015, plaintiff filed the Proposed Order to Show
Cause and Supporting Exhibits, ECF No. 29, (“Motion for Interim
Injunctive Relief”), which the Court construed as a motion for interim
injunctive relief. See Order, ECF No. 30. In that motion, plaintiff
asks the Court to direct defendants “Ohio Department of Rehabilitation
and Correction, Classification Committee, and [PCI] Warden Jeff
Lisath” to show cause why plaintiff should not be transferred to a
“medical facility, more suited to his age and medical conditions.” Id.
at PAGEID# 276. Defendants oppose this motion, contending that
plaintiff has failed to establish a likelihood of success on his
claims and irreparable harm, and because grant of the Motion for
Interim Injunctive Relief would substantially harm defendants’
“penological interests.” Response in Opposition to Motion for Interim
Injunctive Relief, ECF No. 34.
On August 10, 2015, defendants Bunting, Chattman, Smith, Ohio
Department of Classification, Lisath, Harris, Frazier Hospital Center
Healthcare Administrator (Mary Roush), and PCI Librarian filed the
Motion to Dismiss, contending that plaintiff has failed to state a
claim against them, invoking qualified immunity and the Eleventh
Amendment, and arguing that some of the claims raised by the plaintiff
in the Amended Complaint were foreclosed by the Court’s initial screen
4
of the Complaint. See generally Motion to Dismiss. Plaintiff opposes
the Motion to Dismiss and reiterates the arguments made in his Motion
for Interim Injunctive Relief. Response in Opposition re Motion to
Dismiss, ECF No. 38. Plaintiff has also filed numerous supplemental
documents in support of his filings and has filed the Motion to
Supplement Pending Motions, ECF No. 39, requesting leave to amend the
Motion for Interim Injunctive Relief and plaintiff’s Response in
Opposition re Motion to Dismiss by adding additional exhibits and
evidence. See, e.g., Affidavit, ECF No. 41; Notice, ECF Nos. 42-45.
Plaintiff’s Motion to Supplement Pending Motions is GRANTED. The Court
will consider the documents attached to that motion and plaintiff’s
other supplemental filings in its consideration of the Motion for
Interim Injunctive Relief and the Motion to Dismiss.
1. Motion for Interim Injunctive Relief
Rule 65 of the Federal Rules of Civil Procedure permits a party
to seek interim injunctive relief if he believes that he will suffer
irreparable harm or injury without such relief. Fed. R. Civ. P. 65(a),
(b). The decision whether to grant a request for interim injunctive
relief falls within the sound discretion of the district court.
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 102
(6th Cir. 1982); Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620,
625 (6th Cir. 2000). An injunction, however, is an extraordinary
remedy that should be granted only after a court has considered the
following four factors:
(1) whether the movant has a “strong” likelihood of success
on the merits; (2) whether the movant would otherwise
suffer irreparable injury; (3) whether issuance of a
preliminary injunction would cause substantial harm to
5
others; and (4) whether the public interest would be served
by issuance of a preliminary injunction.
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing
McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459
(6th Cir. 1997)). These four considerations are factors to be
balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.
1985); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.
2001). The movant bears the burden of establishing that “the
circumstances clearly demand” this extraordinary relief. Overstreet v.
Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002)
(citing Leary, 228 F.3d at 739). “Moreover, a district court is not
required to make specific findings concerning each of the four factors
used in determining a motion for preliminary injunction if fewer
factors are dispositive of the issue.” Jones v. City of Monroe, 341
F.3d 474, 476 (6th Cir. 2003) (citing DeLorean, 755 F.2d at 1228).
However, a preliminary injunction should not issue where there is
simply no likelihood of success on the merits. Mich. State AFL–CIO v.
Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
In the case presently before the Court, plaintiff moves for
interim injunctive relief against defendants Lisath, the warden at
PCI, and the Ohio Department of Classifications, seeking his transfer
to “FRANKLIN MEDICAL CENTER, OR A LIKE FACILITY, to ensure he will
recieve [sic] adequate medical treatments for his TORN ROTATOR CUFF,”
among other listed injuries. Motion for Interim Injunctive Relief,
PAGEID# 276-77. However, for the reasons stated infra, the Court
concludes that plaintiff has failed to state a valid claim against
either defendant Lisath or defendant the Ohio Department of
6
Classifications. Under these circumstances, plaintiff has failed to
establish a basis for his requested interim injunctive relief. See
Mich. State AFL–CIO v. Miller, 103 F.3d at 1249.
2. Motion to Dismiss
The moving defendants seek dismissal of the claims asserted
against them on a number of grounds, including for failure to state a
claim for relief.
See Fed. R. Civ. P. 12(b)(6). A claim may be
dismissed if “‘it fails to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 45-46(1957)). Although a claim need not contain detailed
factual allegations, the claim must include more than labels and
conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”).
Rather, the claim must contain “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft, 556
U.S. at 678. Although pro se complaints are held “to less stringent
standards than formal pleadings drafted by lawyers,” Haines v. Kerner,
404 U.S. 519, 520 (1972), even a pro se complaint “must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft 556 U.S. at 678
(internal quotation marks omitted).
7
Although plaintiff does not expressly invoke the provisions of 42
U.S.C. § 1983 in the Amended Complaint, the Court construes
plaintiff’s various claims as claims under that statute. In order to
state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the federal Constitution or laws and
must show that the deprivation was committed by a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v.
Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996). Because § 1983
is a method for vindicating federal rights, not itself a source of
substantive rights, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
a. Applicable Standards
i. Liability of Supervisors
A supervisory official may not be held liable under 42 U.S.C. §
1983 for the alleged misconduct of subordinates unless “the plaintiff
demonstrates that ‘the supervisor encouraged the specific incident of
misconduct or in some other way directly participated in it.’” Combs
v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002) quoting Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “‘At a minimum a plaintiff
must show that the official at least implicitly authorized, approved,
or knowingly acquiesced in the unconstitutional conduct of the
offending officers.’”
Id., quoting Hays v. Jefferson County, 668 F.2d
869, 874 (6th Cir. 1982).
Liability on the part of a supervisor must
be based on “active unconstitutional behavior.”
Id., citing Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Furthermore, “[p]rison
8
officials are not liable under § 1983 for denying or failing to act on
grievances.” Barnett, 414 Fed. App’x at 787.
ii. State Agencies
State agencies are absolutely immune from suit in federal courts
by virtue of the Eleventh Amendment to the United States Constitution.
See Beil v. Lake Erie Correction Records Dept., 282 Fed. Appx. 363,
2008 WL 2434738 (6th Cir. June 13, 2008). See also Regents of Univ. of
Calif. v. Doe, 519 U.S. 425, 429 (1997)(Eleventh Amendment sovereign
immunity applies not only to the states themselves but also to “state
agents and instrumentalities”).
Moreover, a state agency is not a
“person” subject to suit under 42 U.S.C. §1983.
Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
iii. Access to the Courts
The First Amendment to the United States Constitution guarantees
to inmates a right of access to the courts. Lewis v. Casey, 518 U.S.
343, 346 (1996); Bounds v. Smith, 430 U.S. 817 (1977); Clark v.
Corrections Corp. of America, 113 Fed. App’x 65, 67 (6th Cir. 2004).
Although the Constitution assures “adequate, effective, and
meaningful” access, Bounds, 430 U.S. at 822, the right is nevertheless
not unlimited.
For example, the right relates only to challenges to
the inmate’s conviction or sentence or to challenges to the conditions
of confinement.
Lewis, 518 U.S. at 355. Moreover, restrictions on the
time, place and manner in which inmates may engage in legal research
and draft legal documents are permissible so long as the restrictions
do not unreasonably impede the right of access to the courts.
v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985).
9
Walker
Furthermore, inmates
have no independent constitutional right of access to computers, see
White-Bey v. Griggs, 43 F.App’x 792 (6th Cir. 2002); Lehn v. Hartwig,
13 F.App’x 389, 392 (7th Cir. 2001), nor do they have a First
Amendment right of access to typewriters, Mulazim v. Bailey, 107 F.3d
12 (Table), 1997 WL 48988, *1 (6th Cir. February 4, 1997).
b. Discussion
i. Defendant Bunting
The Amended Complaint alleges that “defendant Bunting was kited
by plaintiff/inmate Combs, advising him of unsafe and illegal assigned
housing at Buckeye Unit, Dorm #2,” and that “Warden Bunting failed to
investigate these allegations.” Id. at PAGEID# 129. Plaintiff does not
allege that defendant Bunting participated in plaintiff’s housing
assignment at MCI. To the extent that the Amended Complaint seeks to
base liability on Defendant Bunting’s supervisory position as warden,
the claim is insufficient. See Combs, 315 F.3d at 554. Moreover, the
mere fact that defendant Bunting failed to respond to plaintiff’s kite
is likewise insufficient. See Barnett, 414 Fed. App’x at 787.
Therefore, even accepting plaintiff’s allegations as true, the Amended
Complaint does not state a valid claim against defendant Bunting.
ii. Defendant Chattman
Plaintiff alleges that defendant Chattman, the deputy warden at
MCI, was also the supervisor of MCI’s medical department. According to
the Amended Complaint, defendant Chattman, despite having been
“advised, via a number of kites,” failed to investigate or intervene
in connection with plaintiff’s “alleged denial of adequate medical
care by Polly Schmalz” and “was also aware of plaintiff’s unsafe
10
housing.” Id. at PAGEID# 130. Again, it appears that plaintiff seeks
to base this defendant’s liability on his supervisory position. There
is no allegation that this defendant encouraged or otherwise
participated in the alleged denial of medical services or plaintiff’s
housing assignment. This Court therefore concludes that the Amended
Complaint fails to state a claim against defendant Chattman upon which
relief can be granted. See Combs, 315 F.3d at 554.
iii. Defendant Smith
The Amended Complaint alleges that defendant Smith, MCI’s
institutional inspector, failed to investigate plaintiff’s claims of
protected status under the ADA, denial of adequate medical care, and
unsafe housing conditions. Id. at PAGEID# 130. Plaintiff’s claim
against defendant Smith is based on plaintiff’s dissatisfaction with
this defendant’s response to plaintiff’s grievances. However, such
allegations are simply insufficient to state a claim for relief under
§ 1983. See Barnett, 414 Fed. App’x at 787. The Amended Complaint
fails to state a valid claim against defendant Smith.
iv. Defendant Ohio Department of Classification
The Amended Complaint alleges that defendant “Ohio Department of
Classification, Ohio Department of Rehabilitation and Corrections,” or
the Bureau of Classification, made “obvious errors. . . in the
transfers of plaintiff” and that his transfer “four times (4), in less
than two (2) years” amounted to “cruel and unusual punishment” and a
“lack of due process.” Id. at PAGEID# 132. This defendant is a state
agency that is absolutely immune from suit in this Court, see Regents
of Univ. of Calif. v. Doe, 519 U.S. 425, and which is not a “person”
11
subject to suit under 42 U.S.C. §1983, see Will v. Michigan Dep’t of
State Police, 491 U.S. 58.
Accordingly, the claim against the
defendant Ohio Department of Classification cannot proceed.
v. Defendant Lisath
Plaintiff claims that he contacted defendant Lisath, warden of
PCI, about his medical issues and his transfer to PCI, but that this
defendant failed to help plaintiff. Amended Complaint, PAGEID# 133-34.
Again, plaintiff appears to base liability on this defendant’s
supervisory position. The Amended Complaint fails to state a claim for
relief against defendant Lisath. See Combs v. Wilkinson, 315 F.3d at
554.
vi. Defendant Harris
The Amended Complaint alleges that defendant Harris, ADA Inmate
Coordinator at PCI, failed to answer plaintiff’s reasonable
accommodation requests within ten working days, in violation of a
“rule.” Id. at PAGEID# 134. As a result, plaintiff suffered “undue
hardship in his living conditions while housed at PCI.” Id. Plaintiff
never identifies this “rule” and the Amended Complaint offers no basis
for concluding that defendant Harris, in failing to respond to
plaintiff’s requests within ten days, violated plaintiff’s rights
under the Constitution or laws of the United States. Consequently, the
Amended Complaint fails to state a valid claim against defendant
Harris.
vii. Defendant Frazier Hospital Healthcare Administrator
The Amended Complaint characterizes defendant Frazier Hospital
Healthcare Administrator (Mary Roush) as responsible for “all
12
employees and their decisions concerning inmate medical services” and
“for services or lack of services plaintiff received since arriving at
PCI.” Id. at PAGEID# 136. Plaintiff alleges that he filed “a number of
informal complaints, kites, and grievances requesting medical
treatment, or complaining of medical staff and denial of some needed
medical services.” Id. These allegations are clearly claims based on
this defendant’s supervisory position and are simply insufficient to
state a claim for relief against this defendant. See Combs v.
Wilkinson, 315 F.3d at 554. See also Barnett, 414 Fed. App’x at 787.
viii. Defendant PCI Librarian
The Amended Complaint alleges that defendant PCI Librarian,
identified as Nnacho Igwe, Motion to Dismiss, PAGEID# 353, maintains
“rules, policies, and procedures that deny inmates with disabilities
access to the library facility.” Id. at PAGEID# 136. Plaintiff
specifically alleges that the library’s location on the second floor
of the facility is unavailable to him because of his inability to
climb the stairs to the second floor. Id. Plaintiff also alleges that
the library’s failure to provide “ribbon” for a typewriter for
plaintiff’s use denies PCI inmates with disabilities access to library
facilities and equipment. Id.
As noted supra, a claim of denial of access to the courts
requires an allegation of actual injury, i.e., the loss of or
interference with a non-frivolous, constitutionally protected claim.
Lewis, 518 U.S. at 351; Walker, 771 F.2d at 932. The Amended Complaint
makes no such allegation.
The claim against defendant PCI Librarian
cannot, therefore, proceed.
13
It is therefore RECOMMENDED that plaintiff’s Motion for Interim
Injunctive Relief, ECF No. 29 be DENIED and the Motion to Dismiss, ECF
No. 32 be GRANTED.
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 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
constituted
object
a
waiver
to
the
of
[the
magistrate
defendant’s]
judge’s
recommendations
ability
to
appeal
the
district 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
magistrate
of
judge’s
pretrial
report
motion
and
by
failing
recommendation).
to
timely
Even
object
when
to
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
14
fails
to
specify
the
issues
of
contention,
does
not
suffice
preserve an issue for appeal . . . .”) (citation omitted)).
s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
January 8, 2016
15
to
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?