Long v. Mohr et al

Filing 42

ORDER AND REPORT AND RECOMMENDATIONS re 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. It is RECOMMENDED that the Motion be denied in part and granted in part. Plaintiff is ORDERED to demonstrate effectiveservice of process defendants not served by 4/29/2016. Objections to R&R due by 4/15/2016. Signed by Magistrate Judge Norah McCann King on 3/29/2016. (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

MARK M. LONG,
Plaintiff,
Case No. 2:15-cv-01616
Judge Frost
Magistrate Judge King

v.
GARY MOHR, et al.,
Defendants.

ORDER AND
REPORT and RECOMMENDATION
This is a civil rights action under 42 U.S.C. § 1983 in which
plaintiff, an inmate at the Madison Correctional Institution (“MaCI”),
alleges that defendants violated his constitutional rights by denying
him medical and dental care, by retaliating against him, by filing
false reports against him, by punishing him for acting in selfdefense, and by violating his right to free speech. Complaint, ECF No.
3. The Complaint seeks injunctive and monetary relief and refers to 41
defendants, some of whom are referred to only by pseudonym. This
matter is before the Court on the motion to dismiss filed on behalf of
the 26 defendants who have been served with process in this action.
Motion to Dismiss of Served Defendants, ECF No. 23 (“Defendants’
Motion”).1 Plaintiff has filed a response in opposition to Defendants’
Motion. Plaintiff’s Memorandum in Opposition to Defendants [sic]
1

The defendants who have been served with process and who have moved to
dismiss are defendants Eddy, Magnuson, Mohr, Neufeld, Pfaff, Richard,
Schaefer, Brunsmen, Conley, Gilespie, Harley, Portis, Rannes, Yost, Beard,
Berchtold, Patterson, Varner, Louk, Joshua Lyon, Dakota Lyon, Neininger,
Parks, Plantz, Willingham, and Wilson.

1

Motion to Dismiss, ECF No. 29 (“Plaintiff’s Response”). For the
following reasons, it is recommended that Defendants’ Motion be DENIED
in part and GRANTED in part.
I. STANDARDS
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 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.”
P. 8(a) (2)).

2

Id. at 679 (quoting Fed. R. Civ.

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 for relief that is
plausible on its face.” Ashcroft, 556 U.S. at 678 (internal quotation
marks omitted).
In order to state a claim under 42 U.S.C. § 1983, a plaintiff
must allege the violation of a right secured by the Constitution or
laws of the United States and must allege 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, and is not itself a source of substantive rights, the first
step in analyzing the sufficiency of a claim under § 1983 is to
identify the specific constitutional right allegedly infringed.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
II. DISCUSSION
A. Alleged Denial of Medical and Dental Care
Plaintiff’s first claim relates to the alleged denial of medical
and dental care. Complaint, PAGEID# 25, 27-28. Plaintiff specifically
alleges that he was denied “surgery for necrosis of the left hip,
requiring a hip replacement as per several orthopedic surgeons at Mt.
Carmel West Hosp.,” id., as well as “several other medical issues not
fully investigated and allowed to linger untreated.” Id. at PAGEID#
27. Plaintiff also alleges that he was required to wait 1 year for
dental care, that some cavities were not repaired, and that he was

3

“denied full partial dentures.” Id. Plaintiff also alleges that, when
he complained about his care, his grievances were not handled properly
and he was subjected to retaliation, which is otherwise unspecified.
Id. at PAGEID# 27-28.
The Eighth and Fourteenth Amendments to the United States
Constitution proscribe "deliberate indifference to serious medical
needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976).

The

Constitution does not, however, prohibit medical malpractice within
the prison context. Id.; Webster 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). On the other hand, the needless suffering of
pain when relief is readily available gives rise to a cause of action
against those whose deliberate indifference caused the inmate's
unnecessary pain. Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976).
Moreover, an inmate can state a colorable claim under §1983 even if it
is alleged that the difference to his medical needs existed for only a
short period of time. Byrd v. Wilson, 701 F.2d 592 (6th Cir. 1983).
There are two parts to a claim of failure to provide health care
to an inmate, one objective and the other subjective. Flanory v. Bonn,
604 F.3d 249, 253 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S.
825, 833 (1994)). In order to satisfy the objective component, the
inmate must demonstrate the existence of a sufficiently serious
medical need. The United States Court of Appeals for the Sixth Circuit
has explained that a condition is “sufficiently serious” when the need

4

for medical care is obvious even to a lay person. Blackmore v.
Kalamazoo County, 390 F.3d 890, 899-900 (6th Cir. 2004). “To satisfy
the subjective component, the plaintiff must allege facts which, 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.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). The
requisite state of mind “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, 511 U.S. at 835.
The Complaint alleges that defendants Eddy and Yost “voted to
deny me hip replacement surgery. . . .” Id. at PAGEID# 27.2 This Court
concludes that, as it relates to this claim as against defendants Eddy
and Yost, the Complaint states a claim upon which relief can be
granted.
The Complaint also alleges that defendant Gary Mohr, “as the
Director of ODRC [Ohio Department of Rehabilitation and Correction],”
is also responsible for the actions of “all staff,” id., and that
defendant “Richard” (identified as the current warden at MaCI) “is
fully responsible for actions or lack thereof of all staff and turned
a blind eye,” id. at PAGEID# 28.3 A supervisor 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

2

The Complaint also alleges that defendant Gardner participated in this
decision. Id. However, defendant Gardner has not been served with process.
3
The Complaint also names Rod Johnson, the former MaCI warden, as a defendant
in connection with this claim. Complaint, PAGEID# 28. However, this defendant
has not been served with process.

5

specific incident of misconduct or in some other way directly
participated in it.’” Combs v. Wilkinson, 315 F.3f 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). Because it purports to base the liability of defendants Mohr
and Richard on only their roles as supervisors, the Complaint fails to
state a claim for relief against these defendants.
Plaintiff alleges that defendants Neufeld (identified as the MaCI
institutional medical director), Oppy (identified as the former MaCI
Health Care Administrator), and Magnuson and Curtiss (identified as
MaCI nurses) “failed to provide medical care, including pain meds,
cane for walking. . . .” Complaint, PAGEID# 27. This allegation is
sufficient to state a claim for relief against these defendants. Other
allegations against these defendants, i.e., failure to record
plaintiff’s medical complaints and failure “to send all records to
Columbus,” id., fail to state a colorable claim of denial of medical
care.
The Complaint alleges that defendant Rannes, a dentist at MaCI,
delayed plaintiff’s treatment for one year, failed to repair all
cavities and denied plaintiff “full partial dentures.” Id. [sic].
a result, plaintiff alleges, his teeth and gums were damaged. This

6

As

allegation is sufficient to state a claim for relief against defendant
Rannes.
The Complaint also appears to assert this claim against certain
defendants based on alleged failures to resolve to his satisfaction
plaintiff’s grievances regarding his health care. Plaintiff
specifically alleges that defendants Parish and J. Robinson
(identified as former MaCI Institutional Inspectors), and defendant J.
Glispie (identified as the current MaCI Institutional Inspector)
“failed to examine all medical records” and “denied
appeals/grievances,” id., and that defendants Mona Parks and John Doe
#6 (identified as the ODRC Assistant Chief Inspector and Chief
Inspector, respectively) ignored records and claims “in favor of staff
and ODRC,” id. at PAGEID# 28. However, a state prison inmate does not
have an inherent constitutional right to an effective prison grievance
procedure. Young v. Gundy, 30 Fed.Appx. 568, 569–70 (6th Cir. 2002),
citing Antonelli v. Sheahan, 81 F.3d 1422, 1430–31 (7th Cir. 1996);
Walker v. Michigan Dept. of Corrections, 128 Fed. Appx. 441, 2005 WL
742743, **3 (6th Cir. April 1, 2005). See also Hewitt v. Helms, 459
U.S. 460, 467 (1983); Argue v. Hofmeyer, 80 Fed.Appx. 427, 430 (6th
Cir. 2003); Keenan v. Marker, 23 Fed.Appx. 405, 407 (6th Cir. 2001);
Mays v. Wilkinson, 181 F.3d 102 at *1 (6th Cir. 1999). Prison
officials are not obligated to respond to an inmate's grievances in a
way satisfactory to the inmate. Overholt v. Unibase Data Entry, Inc.,
221 F.3d 1335, *3 (6th Cir. 2000). Plaintiff has failed to state a
claim for relief against these defendants.

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B. Alleged Retaliation
Plaintiff’s second claim alleges a violation of his “due process
and equality,” stemming from reprisals against plaintiff. Complaint,
PAGEID# 25-26. Specifically, plaintiff alleges that, in response to
plaintiff’s complaints of misconduct, 33 defendants (primarily MaCI
corrections officers and the Director of ODRC4) “ignore[d] evidence or
manufacture[d] evidence to have [plaintiff] punished unjustly.” Id. at
PAGEID# 26, 28. This claim is entirely devoid of factual allegations
and amounts to no more than labels and conclusions. These allegations
are insufficient to state a claim upon which relief can be granted.
See Twombly, 550 U.S. at 555; Ashcroft, 556 U.S. at 678.
C. Prison Disciplinary Proceedings
In the third count of the Complaint, plaintiff alleges that
defendants failed to “provide for the safety and security of wards of
the state,” assaulted plaintiff with the intent to injure his left
hip, and then conspired to cover up these actions by filing a false
report and bringing false charges. Complaint, PAGEID# 26. Plaintiff
refers to 39 defendants in connection with this claim, including the
defendants who allegedly denied plaintiff’s requested hip replacement
and the warden of MaCI. Id. at PAGEID# 28.5 Although this claim
contains very few factual allegations, it appears that plaintiff
intends to refer to prison disciplinary actions taken against him: in
his requested relief in connection with this claim, plaintiff asks
that “all actions by ODRC that found me guilty and is found by jury or

4
5

Fourteen of these defendants have not been served with process.
Of these defendants, fourteen have not been served with process.

8

court that I am not guilty, to order those records to be restored and
marked not guilty.” Id. at PAGEID# 30.
Plaintiff’s fourth claim also appears to address disciplinary
action taken against him. Plaintiff alleges that 12 defendants6
violated his “right to selfdefense [sic]” by punishing him for “having
to take fast action to prevent the attack of another inmate whom [sic]
would have attacked causing severe injury or death. . . .” Id. at 26,
29.
Plaintiff’s fifth claim appears to challenge the adequacy of
disciplinary proceedings against him. Plaintiff alleges that
defendants violated his right to free speech by instructing him to
“shut-up” and by threatening him when he attempted to explain why he
had been attacked. Id. at 26.
Prison disciplinary proceedings do not implicate a
constitutionally protected liberty interest unless they affect the
duration of the prisoner’s confinement, or unless the restrictions
impose an atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.

Sandin v. Conner, 515 U.S.

472, 484. Plaintiff alleges nothing that would give rise to a
constitutionally protected liberty interest in connection with
disciplinary proceedings against him.

It is therefore RECOMMENDED that the Motion to Dismiss of Served
Defendants, ECF No. 23, be denied in part and granted in part.
Specifically, as the motion relates to defendants Eddy, Yost, Rannes,
6

Eight of the 12 defendants have not been served with process.

9

Neufeld, Oppy, Magnuson, and Curtiss in connection with plaintiff’s
claim of denial of medical and dental care, it is RECOMMENDED that the
motion be denied. In all other respects, it is RECOMMENDED that the
motion be granted.
The docket reflects that a number of defendants have not been
served with process.

Plaintiff is ORDERED to demonstrate effective

service of process on these defendants no later than April 29, 2016.
His failure to do so is likely to result in the dismissal, without
prejudice, of any remaining claims asserted against these defendants.
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]

10

judge’s
ability

recommendations
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

to

recommendation).

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
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
March 29, 2016

11

to