Rogers v. The State of Ohio et al

Filing 39

REPORT AND RECOMMENDATIONS re 24 MOTION for Judgment on the Pleadings filed by Alterik Rogers. It is RECOMMENDED that Plaintiff's Motion be DENIED. Objections to R&R due by 3/17/2016. Signed by Magistrate Judge Norah McCann King on 2/29/2016. (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

ALTERIK ROGERS,
Plaintiff,
vs.

Civil Action 2:15-cv-1877
Chief Judge Sargus
Magistrate Judge King

THE STATE OF OHIO, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Motion for
“Judgment on the Pleadings” Against “Defendant Sheriff Fred Abdalla”
Pursuant to {Fed.Civ.R.12(C)}, ECF No. 24 (“Plaintiff’s Motion”).

For

the reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be
DENIED.
I.

Factual Allegations and Procedural Background
Plaintiff, a state inmate proceeding without the assistance of

counsel, alleges that he was in the custody of the Jefferson County
Jail, Steubenville, Ohio on January 14, 2014.
PAGEID#:30.1

Complaint, ECF No. 3,

Plaintiff alleges that he was handcuffed and not wearing

a seat belt while riding in the back of the patrol car operated by
defendant police officer Sean Scott.

Id.

According to plaintiff,

defendant Scott, who was transporting plaintiff from a court
appearance, was driving erratically and at high speeds.

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The Complaint is verified.

Id. at PAGEID#:32.

1

Id.

As he

approached the Jefferson County Jail’s garage, defendant Scott
allegedly accelerated and crashed into the back of a parked bus inside
the garage (“the incident”).
not taken to a hospital.

Despite his requests, plaintiff was

Id.

Id.

After he returned to his cell in the

Jefferson County Jail, plaintiff complained of injuries and again
asked to be taken “to medical.”

Id.

Plaintiff was “escorted to

medical to see a Nurse (Name Unknown), [who] stated ‘there is nothing
we can do for you, I agree with the officer’s [sic] your bond is to
[sic] high to escort you to the hospital.’”

Id.

According to

plaintiff, he still suffers from injuries caused by the incident.

Id.

at PAGEID#:30-31.
Plaintiff filed this action under 42 U.S.C. § 1983 on May 13,
2015.

He alleges that he suffered injury during the course of the

incident and was thereafter denied medical care by personnel at the
Jefferson County Jail.

See generally Complaint.

Plaintiff names as a

defendant, inter alios, Jefferson County Sheriff Fred Abdalla in his
“Official/or Individual Capacity.”

See id.; Order, ECF No. 2

(granting leave to proceed in forma pauperis); Report and
Recommendation on Initial Screen of the Complaint, ECF No. 4
(recommending that the State of Ohio be dismissed from the action);
Order, ECF No. 8 (adopting and affirming report and recommendation).
Plaintiff seeks, inter alia, monetary damages from defendant Abdalla
“for pain and suffering and mental anguish do [sic] to the neglect and
disregard to my personal safety, and denial of medical treatment with
deliberate indifference.”

Id. at PAGEID#:31.

2

Defendant Abdalla has

responded to the Complaint, raising several defenses.

ECF No. 11, pp.

1-3 (“Answer”).
Plaintiff now moves for judgment on the pleadings, see
Plaintiff’s Motion, which defendant Abdalla opposes.
(“Opposition”).

ECF No. 32

Plaintiff has not filed a reply in support of

Plaintiff’s Motion.
II.

Standard
A motion for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure attacks the sufficiency of the
pleadings and is reviewed under the same standard applicable to a
motion to dismiss under Rule 12(b)(6).
F.3d 509, 511–12 (6th Cir. 2001).

Ziegler v. IBP Hog Mkt., 249

See also Gascho v. Glob. Fitness

Holdings, LLC, 918 F. Supp.2d 708, 716 (S.D. Ohio 2013) (“It is wellsettled that the standard of review for a motion for judgment on the
pleadings under Rule 12(c) is the same as that used to address a
motion to dismiss under Rule 12(b)(6).”).

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, 45-46(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.”).
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The court must

determine whether the complaint contains “enough facts to state a
claim to relief that is plausible on its face.”
570.

Twombly, 550 U.S. at

“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.”
U.S. at 678.

Iqbal, 556

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.”
Twombly, 550 U.S. at 556).

Id. (quoting

“[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)).
The Court also notes that plaintiff is proceeding in this case
without the assistance of counsel.

Generally, pleadings by pro se

plaintiffs are held “to less stringent standards than formal pleadings
drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Nevertheless, courts should not interpret procedural rules “so as to
excuse mistakes by those who proceed without counsel.”
United States, 508 U.S. 106, 113 (1993).

McNeil v.

See also Wells v. Brown, 891

F.2d 591, 594 (6th Cir. 1989) (“Neither this Court nor other courts,
however, have been willing to abrogate basic pleading essentials in
pro se suits.”).
III. Discussion
Plaintiff apparently sues defendant Abdalla in both his

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individual and official capacity.

Complaint, PAGEID#27, 31.

A claim

brought against a government employee in his individual capacity seeks
to hold the employee personally liable for actions taken under color
of state law.

Kentucky v. Graham, 473 U.S. 159 (1985).

However, a

claim brought against a government employee in his or her official
capacity is the equivalent of a claim brought against the governmental
entity itself.

Id. at 165 66.

The Court will first turn to the

individual capacity claim.
A.

Individual Capacity

“Because § 1983 liability cannot be imposed under a theory of
respondeat superior, proof of personal involvement is required for a
supervisor to incur personal liability.”

Grinter v. Knight, 532 F.3d

567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun County, 408 F.3d
803, 817 n.3 (6th Cir. 2005) (internal quotation marks omitted)).

“At

a minimum, a § 1983 plaintiff must show that a supervisory official at
least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.”

Id. (quoting

Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (internal
quotation marks omitted)).

Thus, liability on the part of a

supervisor must be based on “active unconstitutional behavior.”

Combs

v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002) (citing Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
In the case presently before the Court, plaintiff does not allege
that defendant Abdalla actually participated in the events complained
of in the Complaint.

Instead, the totality of plaintiff’s allegations
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against defendant Abdalla constitutes a request for damages:
I want to receive $75, 000 (Seventy-five thousand US
dollars from Defendant: Jefferson County Sheriff Fred
Abdalla (In his Official/or Individual Capacity) for pain
and suffering and mental anguish do [sic] to the neglect
and disregard to my personal safety, and denial of medical
treatment with deliberate indifference.
Complaint, PAGEID#:31.

This allegation is insufficient to establish

the active unconstitutional behavior necessary to establish the
liability of a supervisor. See Combs, 315 F.3d at 554.
In moving for judgment on the pleadings, plaintiff also argues
that defendant Abdalla was “responsible for the Medical care of the
inmates held in his jail” and that “[t]he medical staff at the
Jefferson County jail, under the authority of Sheriff Fred Abdalla,
deliberately refused Plaintiff treatment[.]”
PAGEID#:204, 213.

Plaintiff’s Motion,

See also id. at PAGEID#:207 (“The Medical Staff at

the Jefferson County Jail under the authority of Sheriff Fred Abdalla
acted immature and unprofessional.”).

Plaintiff’s assertions in this

regard are deficient for at least two reasons.
not raise these allegations in the Complaint.

First, plaintiff did
Although the Court

provided an opportunity to amend the Complaint, see Report and
Recommendation, ECF No. 35, p. 7, and, upon plaintiff’s request, see
Motion, ECF No. 37, extended the deadline until February 15, 2016, for
filing a new amended complaint, Order, ECF No. 37, plaintiff
nevertheless chose not to amend the Complaint.

In short, at this

stage of the proceedings, the Court is limited to consideration of
the allegations in the currently operative complaint.
Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678.
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See, e.g.,

However, even if the Court were to consider the substance of
plaintiff’s assertions, they are nevertheless deficient.

As discussed

supra, liability on the part of a supervisor must be based on “active
unconstitutional behavior.”

Combs, 315 F.3d at 554.

Plaintiff’s

assertions, which simply contend that defendant Abdalla was
responsible for unidentified “medical staff” at Jefferson County Jail,
is insufficient to establish the required active unconstitutional
behavior or that this defendant otherwise authorized, approved,
knowingly acquiesced in or encouraged constitutional violations.
Grinter, 532 F.3d at 575.

Id.;

Moreover, this Court has already dismissed

the Jefferson County Sheriff’s Medical Department from this action.
Order, ECF No. 38.

For all these reasons, as it relates to the claims

against defendant Abdulla in his individual capacity, Plaintiff’s
Motion is not well-taken.
B.

Official Capacity

Plaintiff has also sued defendant Abdulla in his official
capacity.

As noted earlier, a claim brought against a government

employee in his or her official capacity is the equivalent of a claim
brought against the governmental entity itself, in this case,
Jefferson County.

A governmental entity cannot be held liable under §

1983 on a respondeat superior theory simply because its employees
engaged in unconstitutional conduct.
Services, 436 U.S. 658, 691 (1978).

Monell v. Dep’t of Social
Rather, a plaintiff seeking to

prevail in a § 1983 suit against a governmental entity must first
prove, of course, that a constitutional violation actually occurred,
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and then prove that a policy or custom of the governmental entity was
the “moving force” behind the alleged constitutional violation.
at 694.

Id.

Such a policy or custom may consist of: “(1) the

[governmental entity’s] legislative enactments or official agency
policies; (2) actions taken by officials with final decision making
authority; (3) a policy of inadequate training or supervision; or (4)
a custom of tolerance of or acquiescence in federal rights
violations.”
Cir. 2005).

Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th
Under Monell, a custom is defined as a practice “so

permanent and well settled as to constitute a custom or usage with the
force of law.” Monell, 436 U.S. at 691 (internal quotation marks and
citation omitted).

“In turn, the notion of ‘law’ must include deeply

embedded traditional ways of carrying out [governmental] policy.”
Cash v. Hamilton County Dep’t of Adult Prob., 388 F.3d 539, 543 (6th
Cir.2004)(internal quotation marks omitted).

“It must reflect a

course of action deliberately chosen from among various alternatives.
In short, a ‘custom’ is a ‘legal institution’ not memorialized by
written law.”

Id.

A “plaintiff bears a heavy burden in proving

municipal liability, and he cannot rely solely on a single instance to
infer a policy of deliberate indifference.”

Thomas, 398 F.3d at 433.

In the case presently before the Court, plaintiff does not allege
the existence of an improper policy or custom.
Complaint.

See generally

Moreover, although plaintiff was provided with the

opportunity to amend the Complaint to assert such allegations, see
Report and Recommendation, ECF No. 35, p. 7; Order, ECF No. 37, he has

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not filed an amended complaint.

Accordingly, as it relates to his

claims against defendant Abdulla in his official capacity, Plaintiff’s
Motion is not well-taken.
WHEREUPON, it is RECOMMENDED that Plaintiff’s Motion for
“Judgment on the Pleadings” Against “Defendant Sheriff Fred Abdalla”
Pursuant to {Fed.Civ.R.12(C)}, ECF No. 24, be DENIED.
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).

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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 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 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

February 29, 2016

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

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