Anderson v. Toledo Correctional Center Medical Dept. et al

Filing 52

ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that defendants' Motion to Dismiss, ECF No. 51 , be granted. The Amended Complaint was filed on April 15, 2015 and, as noted, only seven (7) of the thirteen (13) named defendants have been served with process. Plaintiff is therefore ORDERED TO SHOW CAUSE, within fourteen (14) days, why the claims against the remaining named defendants should not be dismissed for failure to timely effect service of process. Objections to R&R due by 6/3/2016. Signed by Magistrate Judge Norah McCann King on 5/16/2016. (pes)(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

BENNIE ANDERSON,
Plaintiff,
vs.

Civil Action 2:15-cv-728
Judge Graham
Magistrate Judge King

TOLEDO CORRECTIONAL CENTER
MEDICAL DEPT., et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff brings this civil action seeking monetary damages and
the prosecution of defendants. Amended Complaint, ECF No. 8, PAGEID
47.

The Amended Complaint names as defendants thirteen employees of

the Ohio Department of Rehabilitation and Correction (“ODRC”), but the
record indicates that only seven defendants have been served with
process: Gary C. Mohr, Anita Phillips, Daniel J. Chuba, Ellen Venters,
Kathleen Kovach, “Ms. Robertson,” and Marie Monteoffel, M.D.1 This
matter is now before the Court on the motion to dismiss filed on
behalf of these defendants. Motion to Dismiss, ECF No. 51. There has
been no response to the motion.
Standard
A complaint may be dismissed for failure to state a claim if “‘it
fails to give the defendant fair notice of what the ... claim is and
The Amended Complaint also refers to various John and Jane Doe defendants.
Amended Complaint, PageID# 41.

1

1

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, 4546(1957)).

Although

a

complaint

need

not

contain

detailed

factual

allegations, a plaintiff's allegations 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.”).
The court must determine whether the complaint contains “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 the plausibility standard is not
equivalent to a “‘probability requirement,’ ... it asks for more than
a

sheer

possibility

that

a

defendant

has

acted

unlawfully.”

Id.

(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do
not

permit

the

court

to

infer

more

than

the

mere

possibility

of

misconduct, the complaint has alleged - but it has not ‘show[n]’ that the pleader is entitled to relief.”

Id. at 679 (quoting Fed. R.

Civ. P. 8(a) (2)).
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

2

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (internal
quotation marks omitted).
Discussion
The Amended Complaint complains of various aspects of medical
care at the Toledo Correctional Institution (“ToCI”).

Plaintiff first

alleges that, in September 2014, he suffered a fractured hip as a
result of a fall at ToCI and that, although x-rays were taken, final
approval for recommended treatment “had to come from the Columbus
Office (i.e., O.D.R.C.) and that O.D.R.C. had cut back on treating
prisoners, because of budget cuts.” Id. at PAGEID# 42. Plaintiff also
alleges that a nurse practitioner “ordered milk to compensate for
[his] vitamin D de[ficiency],” but that a dietitian “refused to order
the extra milk. . . .” Id. at PAGEID# 42, 43. Moreover, although
plaintiff’s eyeglass prescription had changed in December 2014, he was
advised

that

eyeglasses

could

be

replaced

only

every

four

years

because of budget cuts. However, plaintiff also learned from “some
white prisoners” that “their eye-glasses [were] replaced as needed.”
Id. at PAGEID# 43.

Finally, plaintiff alleges that, although a prison

dentist provides antibiotics, “he cannot fix my cracked and exposed
root on

my teeth, once

again

his excuse is budget cuts.”

Id.

at

PAGEID# 43. The Amended Complaint also appears to challenge the basis
of plaintiff’s current confinement, id. at PAGEID# 45-46, as well as
alleged adverse consequences suffered by inmates who refuse to sign a
certain document. Id. at PAGEID 46.
As the claim of indifference to plaintiff’s medical needs relates

3

to

the

defendants

served

with

process,

the

Amended

Complaint

specifically refers only to defendant Dr. Manteoffel. It is alleged
that

this

defendant

requested

that

plaintiff

be

seen

by

a

hip

specialist in January 2015, id. at PAGEID# 43, ordered more x-rays of
plaintiff’s hip in February 2015, id., and “place[d] another order for
treatment to the Columbus office” in March 2015, id.
No mention whatsoever is made of any other defendant who has been
joined in this action. The Amended Complaint therefore fails to state
a claim for relief as against any of these other defendants. See
Twombly, 550 U.S. at 555.
The

Amended

defendant
United

Complaint

Manteoffel.

States

The

does,

Eighth

Constitution

as

and

104 (1976).

expressly

Fourteenth

proscribe

serious medical needs of prisoners."

noted,

refer

Amendments

"deliberate

to

indifference

to
the
to

Estelle v. Gamble, 429 U.S. 97,

The Constitution does not, however, prohibit medical

malpractice within the prison context.

Id.; Wester v. Jones, 554 F.2d

1285, 1286 (4th Cir. 1977); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077, 1081 (3d Cir. 1976).

Of course, a dispute over the

course of medical treatment is likewise not actionable under §1983.
Young v. Gray, 560 F.2d 201 (5th Cir. 1977).
A

claim

of

failure

to

provide

adequate

medical

treatment

requires, inter alia, that a plaintiff allege facts that, 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.”

4

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).

This “entails

something more than mere negligence” but “less than acts or omissions
for the very purpose of causing harm or with knowledge that harm will
result.”

Farmer v. Brennan, 511 U.S. 825, 835 (1994).

The specific allegations against defendant Manteoffel demonstrate
that

she

ordered

diagnostic

tests

and

recommended

treatment

for

plaintiff. The Amended Complaint does not allege facts that would
amount to deliberate indifference to plaintiff’s serious medical need
on the part of this defendant.
The

other

claims

asserted

in

the

Amended

Complaint

make

no

reference whatsoever to any named defendant. Moreover, to the extent
that plaintiff intends to challenge the basis of his confinement, this
Court cannot entertain that challenge in this action absent a showing
that

plaintiff’s

appeal,

expunged

criminal
by

conviction

executive

order,

has

been

declared

“reversed
invalid

on

by

a

direct
state

tribunal, or have otherwise been called into question by a federal
court’s issuance of a writ of habeas corpus.”

Lanier v. Bryant, 332

F.3d 999, 1005-06 (6th Cir. 2003)(citing Heck v. Humphrey, 512 U.S. 477
(1994)).

It is therefore RECOMMENDED that defendants’ Motion to Dismiss,
ECF No. 51, be granted.
The Amended Complaint was filed on April 15, 2015 and, as noted,
only seven (7) of the thirteen (13) named defendants have been served
with process. Plaintiff is therefore ORDERED TO SHOW CAUSE, within

5

fourteen

(14)

defendants

days,

should

service of process.

why

not

the

be

claims

dismissed

against
for

the

failure

remaining
to

timely

named
effect

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

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.

6

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

May 16, 2016

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

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to