McKinney v. Kasich et al
Filing
36
REPORT AND RECOMMENDATIONS re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FOR LACK OF JURISDICTION, 22 MOTION to Stay Discovery, 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND, 20 MOTION to St ay Discovery, 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Lack of Subject-Matter Jurisdiction, 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction of Defendant Step hen R. Payne: It is RECOMMENDED that Defendants' Motions to Dismiss be GRANTED. Furthermore, Defendants' Motions to Stay Discovery are GRANTED pending final disposition of this Report and Recommendation Objections to R&R due by 12/10/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 11/23/2015. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIEL P. MCKINNEY,
Plaintiff,
Civil Action 2:15-cv-2043
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
v.
GOVERNOR JOHN R. KASICH, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’ Motions to Dismiss
(ECF Nos. 12, 17, 18, & 19), Plaintiff’s Memorandum in Opposition (ECF No. 27), Defendant
Payne’s Reply (ECF No. 31), and Defendants’ Motions to Stay Discovery (ECF Nos. 20 & 22).
For the reasons that follow, it is RECOMMENDED that Defendants’ Motions to Dismiss be
GRANTED. Furthermore, Defendants’ Motions to Stay Discovery are GRANTED pending
final disposition of this Report and Recommendation.
I. BACKGROUND
According to the Complaint, in 2004 Defendants began providing medical care to
Plaintiff for a knee injury arising from a June 2003 automobile accident. (ECF No. 3 at 5.)
Plaintiff states that ODRC staff at the Lebanon Correctional Institution provided him with
prescription medication but no further diagnostic examination or medical treatment. (Id.)
Plaintiff further states that he provided Defendants with the results of a previous MRI
examination showing structural damage to his knee that resulted from the 2003 accident. (Id.)
According to Plaintiff, Defendants refused to include the MRI results in his medical file and
conducted no follow-up procedures or diagnostic tests. (ECF No. 3 at 6.) Plaintiff states that
medical staff at ODRC Allen/Oakwood Correctional Institution (“AOCI”) saw him on December
27, 2012 for complaints related to his knee. (Id.) Plaintiff claims that Defendants, again, failed
to conduct necessary diagnostic exams and other medical treatment. (Id.)
Plaintiff relates that on February 12, 2014 while at AOCI his knee gave way and he fell.
(Id.) Plaintiff states that as a result of the fall, in which he “felt his left knee snap,” he could not
walk under his own power and experienced “extreme pain and suffering.” (Id.) Plaintiff avers
that, although his knee was “visibly grotesquely swollen,” the duty officer refused to allow him
to be seen by medical personnel without a formal medical services request. (Id.) After another
officer observed his knee, Plaintiff says he was then allowed to see AOCI medical staff. (Id.)
According to Plaintiff, medical staff diagnosed the knee as arthritic and did not conduct an x-ray
“until several days later” or conduct any other diagnostic procedures. (Id.)
According to the Complaint, on March 14, 2014 Plaintiff’s “knee developed a huge bulge
on the left side of the knee cap and became grotesquely swollen.” (ECF No. 3 at 7.) Plaintiff
states that, again, he had to submit a formal request for medical treatment to which Defendants
did not respond. (Id.) Plaintiff claims that he submitted another formal request on March 24,
2014 and was finally seen two days later. (Id.) According to Plaintiff, the medical staff
“prescribed Ibuprofen, exercise and rest” but otherwise failed to conduct necessary diagnostic
procedures or other medical treatment. (Id.)
Plaintiff claims that Defendant Perez, an ODRC contract physician, told him that “due to
Plaintiff being over the age of forty (40) and the costs associated with the overcrowded
conditions of ODRC prisons, ODRC adheres to the policy of restricting ODRC prisoners of
Plaintiff’s age class (i.e. over 40) from specialized medical diagnosis and treatment, including
2
referrals to orthopedic specialists, specialized diagnosis and corrective surgical treatment for
musculoskeletal injuries similar to Plaintiff’s left knee and shoulder injuries.” (Id.)
According to Plaintiff, after he complained of inadequate medical care, Defendant Factor
denied his grievance on April 17, 2014 on the basis of insufficient evidence. (ECF No. 3 at 7-8.)
Plaintiff appealed on April 21, 2014. (ECF No. 3 at 8.)
Plaintiff states that on May 16, 2014 his knee again gave way and caused him to fall,
injuring his arm, shoulder, and head. (Id.) Plaintiff claims that, again, he had to make a formal
request for medical treatment. (ECF No. 3 at 8-9.) According to Plaintiff, he had still not
received a response to his request one year later. (ECF No. 3 at 9.) Plaintiff claims that he still
has not received adequate diagnosis or treatment of his injuries. (Id.)
Plaintiff alleges Defendants’ “conspiring in the failure to provide for immediate and
responsive” medical care constitutes cruel and unusual punishment under the Eighth Amendment
and violates Plaintiff’s Equal Protection rights and, therefore, violate 42 U.S.C. § 1983 and state
tort laws. (ECF No. 3 at 2, 10.) Plaintiff also alleges that Defendants’ “pattern of deliberate
indifference to Plaintiff’s serious medical needs” constitutes cruel and unusual punishment under
the Eighth Amendment and, therefore, also violates 42 U.S.C. § 1983 and state tort laws. (Id.)
Plaintiff seeks $2.5 million jointly and severally against Defendants for their alleged deliberate
indifference. (ECF No. 3 at. 11.) In addition, Plaintiff seeks declaratory relief and punitive
damages of $250,000.00 each against Defendants Governor Kasich, Mohr, Wilson, Croft, Payne,
Strait, Factor, Payne, and OSUMC Director Jane/John Doe. (Id.)
II. Standard of Review
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
3
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of
complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir.
2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
Further, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
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III. Analysis
A. Defendant Strait’s Prosecutorial Immunity
Defendant Strait is an Assistant Attorney General for the state of Ohio and is being sued
for her January 18, 2015 conduct in “drafting documentation and affidavits amounting to
falsification and misrepresentation of material facts” that Plaintiff claims prevented him from
receiving necessary medical attention. (ECF No. 3 at 9.) The Court interprets Plaintiff’s
allegations to refer to Defendant Strait’s filing of a successful Motion for Summary Judgment in
the Ohio Court of Claims against Plaintiff on January 22, 2015 that included an affidavit of
Defendant Payne. Defendant’s Motion for Summary Judgment Mckinney v. Ohio Dep’t. of
Rehab. & Corr., No. 2014-00571 (Ohio Ct. Cl. Jan. 22, 2015).
Prosecutors, however, are entitled to absolute immunity from damages for both initiating
and prosecuting a case. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Pusey v. Youngstown, 11
F.3d 652, 658 (6th Cir. 1993). A prosecutor must exercise his or her best professional judgment
both in deciding which suits to bring and in prosecuting them in court. Skinner v. Govorchin,
463 F.3d 518, 525 (6th Cir. 2006). Prosecutors could not properly perform this duty if every
decision carried the potential consequences of personal liability in a suit for damages. Id.
Prosecutors, therefore, are extended absolute immunity when the challenged actions are those of
an advocate. Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003). Immunity is granted not
only for actions directly related to initiating and prosecuting a criminal case, however, but also
for activities undertaken “in connection with [the] duties in functioning as a prosecutor.” Id. at
431; Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002). The Sixth Circuit has further
recognized that immunity is granted to prosecutors “pursuing a civil action” when they are
“functioning in an enforcement role and acting as advocates for the state,” Cooper v. Parrish,
5
203 F.3d 937, 947 (6th Cir. 2000), and when they “undertake the defense of a civil suit” against
state officials. Al-Bari v. Winn, No. 89-5150, 1990 WL 94229 at *1 (6th Cir. July 9, 1990).
Defendant Strait was defending a civil suit against the ODRC when she filed the motion
in question. Plaintiff, then, challenges actions Defendant Strait took during the defense of a civil
suit against the state. Plaintiff’s Complaint contains no allegations that Defendant Strait engaged
in any activity outside her role as an advocate in defending against the civil suit. The
Undersigned finds, therefore, that under the logic of Al-Bari she is entitled to absolute immunity
in this matter. Accordingly, Plaintiff has failed to state a claim upon which relief may be granted
against Defendant Strait.
B. Defendant Payne’s Witness Immunity
Defendant Payne, in his role as an expert witness, provided an affidavit in support of
Defendant Strait’s motion for summary judgment filed against Plaintiff in the Ohio Court of
Claims. Affidavit of Stephen R. Payne, M.D. Mckinney v. Ohio Dep’t. of Rehab. & Corr., No.
2014-00571 (Ohio Ct. Cl. Jan. 22, 2015). Plaintiff alleges that Defendant Payne’s conduct in
providing the affidavit constitutes “falsification and misrepresentation of material facts,”
conspiracy to refuse necessary medical treatment, and conspiracy to violate Plaintiff’s Fourteenth
Amendment Equal Protection rights. (ECF No. 3 at 9, 10.) Plaintiff’s Complaint contains no
other factual allegations against Defendant Payne.
The law provides absolute immunity from suit not only for prosecutors when they are
carrying out their assigned role in the justice system, but also to witnesses who provide evidence
in civil and criminal cases. The immunity does not depend on whether the testimony was
truthful, but whether it was given during the course of a trial proceeding. Briscoe v. LaHue, 460
U.S. 325 (1983). Witness immunity has long been “well established in English common law and
6
[is] based on the fact that the threat of liability might prevent witnesses from testifying at all, or
might cause them to distort their testimony based on a fear that they might later be held liable.”
Barrett v. Marbley, No. 2:14-CV-0216, 2014 WL 1308697 at *6 (S.D. Ohio Mar. 28, 2014),
report and recommendation adopted, No. 2:14-CV-0216, 2014 WL 4928950 (S.D. Ohio Oct. 1,
2014).
Either of these occurrences might “deprive the finder of fact of candid, objective, and
undistorted evidence.” Briscoe, 460 U.S. at 333. Weighing the evil of false testimony against
the dangers posed by witness liability, “[t]he line has been drawn in favor of absolute immunity
from suits for money damages, so that witnesses who testify falsely can be prosecuted for
perjury, but they cannot be held civilly liable based solely upon their testimony.” Barrett, 2014
WL 1308697 at *6. The Sixth Circuit “has held that affidavits submitted on the merits of a case,
such as an affidavit filed in support of a dispositive motion, constitute the type of testimony for
which absolute immunity is available.” Id. (citing Slayton v. Wells Fargo Bank, NA, 2013 WL
819229 (S.D. Ohio March 5, 2013), aff'd 542 F. App’x. 512 (6th Cir. Nov.21, 2013)). The
Undersigned finds, therefore, that under these principles Defendant Payne is entitled to absolute
immunity in this matter. Accordingly, Plaintiff has failed to state a claim upon which relief may
be granted against Defendant Payne.
C. Plaintiff’s Claims Barred by the Rooker-Feldman Doctrine
The Rooker–Feldman doctrine is designed “to prevent the encroachment of federal courts
into the business of the state judicial systems.” Immel v. Lumpkin, No. 2:07-CV-1214, 2009 WL
2255225 at *2 (S.D. Ohio July 27, 2009). It protects the state judicial systems by recognizing
that the “independence of state courts would surely be compromised if every adverse decision in
state court merely rang the opening bell for federal litigation of the same issues.” Squirek v. Law
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Offices of Sessoms & Rogers, P.A., 2003 WL 21026580 (M.D. N.C. May 5, 2003) (quoting
Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000)). Therefore, if a Plaintiff
cannot succeed on a federal claim without requiring a district court to re-examine issues already
decided by a state court, the district court cannot exercise subject matter jurisdiction. Immel,
2009 WL 2255225 at *2.
Whether the Rooker–Feldman doctrine applies involves a two-part inquiry. First, the
Court considers whether the federal claim is “inextricably intertwined” with the claim asserted in
the earlier state court action. Hutcherson v. Lauderdale Cnty., Tenn., 326 F.3d 747, 755 (6th Cir.
2003). A claim is “inextricably intertwined” if “the federal claim succeeds only to the extent that
the state court wrongly decided the issues before it. Where federal relief can only be predicated
upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding
as, in substance, anything other than a prohibited appeal of the state-court judgment.” Id. at 756
(quoting Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998)). Second, the Court considers
“whether the federal claim is a ‘general challenge to the constitutionality of the state law applied
in the state action,’ to which the Rooker–Feldman doctrine would not apply, or ‘a specific
grievance that the law was invalidly—even unconstitutionally—applied in the plaintiff’s
particular case,’ that would raise a Rooker–Feldman bar.” Id.
In reviewing Plaintiff's Complaint, the Undersigned finds that Plaintiff’s federal claims
are inextricably intertwined with the medical malpractice claims he asserted earlier in the Ohio
Court of Claims proceedings. Plaintiff's Complaint arises from the same events that formed the
subject matter of his state court case. His action in this Court essentially seeks to overturn the
state court’s finding that “the diagnosis, care, and treatment rendered to plaintiff by defendant’s
medical professionals complied with the applicable standards of care.” Mckinney v. Ohio Dep’t.
8
of Rehab. & Corr., No. 2014-00571 (Ohio Ct. Cl. Mar. 16, 2015). To meet Plaintiff’s demand,
the Court would be required to conduct a direct review of the state proceedings. The relief
sought by Plaintiff against Defendants is, therefore, clearly barred by the Rooker–Feldman
doctrine. Accordingly, the Undersigned finds that the Rooker–Feldman doctrine prohibits this
Court from exercising jurisdiction over Plaintiff’s claims against Defendants. Even if the
Rooker-Feldman doctrine did not control, however, Plaintiff’s claims would still fail, on other
grounds, as a matter of law.
D. Plaintiff’s 42 U.S.C. § 1983 Claims
Plaintiff brings his federal law claims against Defendants under 42 U.S.C. § 1983, which
provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for redress.
In order to proceed under § 1983, a plaintiff must prove both that (1) the perpetrator acted under
color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev'd and remanded sub
nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under
§ 1983 must allege that the deprivation of his rights was intentional or at least the result of gross
negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not actionable
under § 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987).
1. Claims Against Defendants in their Official Capacities
9
As a preliminary matter, § 1983 does not permit Plaintiff to bring his claims against
Defendants in their official capacity. Section 1983 imposes liability only upon a “person” who,
under color of law, subjects another person to a deprivation of federal rights. 42 U.S.C. § 1983.
State officials acting in their official capacity are not “persons” under § 1983. Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989). Plaintiff’s § 1983 claims against Defendants in
their official capacities, therefore, are not cognizable. See Gean v. Hattaway, 330 F.3d 758, 766
(6th Cir. 2003) (holding that § 1983 claims against agents of the state in their official capacity
are not cognizable).
2. Claims Against Defendants Governor Kasich, Mohr, Croft, Wilson, Strait, Payne,
Perez, Edwards, and OSUMC Director Jane/John Doe in their Individual Capacities
Plaintiff cannot establish the liability of a defendant absent a clear showing that the
defendant was personally involved in the activities that form the basis of the alleged
unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); see also Heyerman v.
Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (noting that “[p]ersons sued in their
individual capacities under § 1983 can be held liable based only on their own unconstitutional
behavior”); Murphy v. Grenier, 406 F. App’x at 972, 974 (6th Cir. 2011) (“Personal involvement
is necessary to establish section 1983 liability”). In other words, individual liability “must be
based on the actions of that defendant in the situation that the defendant faced, and not based on
any problems caused by the errors of others, either defendants or non-defendants.” Gibson v.
Matthews, 926 F.2d 532, 535 (6th Cir. 1991). A defendant must, therefore, play more than a
passive role in the alleged violation or show mere tacit approval of the actions in question.
Rizzo, 423 U.S. at 371. The mere existence of supervisory relationship to the actual wrongdoer
is not enough to establish personal liability. Iqbal, 556 U.S. at 677.
10
With respect to Defendants Governor Kasich, Mohr, Croft, Wilson, Strait, Payne, Perez,
Edwards, and OSUMC Director Jane/John Doe, Plaintiff’s Motion for Summary Judgment does
not contain any factual allegation that, if proved, would show their personal involvement in the
alleged misconduct. 1 To the extent Plaintiff includes these Defendants in his Complaint, it is
merely to make conclusory statements about Defendants’ involvement without alleging any facts
that would tend demonstrate causation. (ECF No. 3 at 3, 4, 9, 10.) Plaintiff never indicates how,
if at all, these Defendants were personally involved in any of the alleged misconduct. Plaintiff’s
conclusory statements, therefore, do not allow the Court to “draw the reasonable inference that
the defendant[s] [are] liable for the misconduct alleged,” even assuming all of his factual
allegations are true. Iqbal, 556 U.S. at 678. Accordingly, the Undersigned finds that, as to these
Defendants, Plaintiff’s claims fail to state a claim for which relief can be granted. Fed. R. Civ. P.
12(b)(6).
3. Eighth Amendment Claims
The Supreme Court has stated that conditions of incarceration “must not involve the
wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the
severity of the crime warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework for
courts to use when deciding whether certain conditions of confinement constitute cruel and
unusual punishment prohibited by the Eighth Amendment. A plaintiff must first show facts
which establish that a sufficiently serious deprivation has occurred. Id. Seriousness is measured
in response to “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992)
1
To the extent Plaintiff has alleged specific acts by Defendants Strait and Payne, they are, as
explained above, immune from civil suit. Plaintiff, however, makes other, generalized
allegations against both Defendants, which are analyzed here.
11
(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Routine discomforts of prison life do not
suffice. Id. Only deliberate indifference to serious medical needs or extreme deprivations
regarding the conditions of confinement will implicate the protections of the Eighth Amendment.
Id. at 9. Plaintiffs must also establish a subjective element showing the prison officials acted
with a sufficiently culpable state of mind. Id. Deliberate indifference is characterized by
obduracy or wantonness, not inadvertence or good faith error. Whitley v. Albers, 475 U.S. 312,
319 (1986). Liability cannot be predicated solely on negligence. Id. A prison official violates
the Eighth Amendment only when both the objective and subjective requirements are met.
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
A prisoner states an Eighth Amendment claim where he is denied some element of
civilized human existence due to deliberate indifference or wantonness. Wilson, 501 U.S. at 298;
Street v. Corr. Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). “In sum, this prong of the
Eighth Amendment affords protection against conditions of confinement which constitute health
threats, but not against those which cause mere frustration or annoyance.” Id. (citing Hudson,
503 U.S. at 9–10). Where medical assistance has been administered, such treatment must be so
“woefully inadequate as to amount to no treatment at all” in order to give rise to a cause of action
under § 1983. Westlake v. Lucas, 537 F.2d 857, 860–61 n.5 (6th Cir. 1976). Allegations of
negligence in diagnosing or treating medical conditions are not actionable under § 1983. Estelle
v. Gamble, 429 U.S. 97, 106 (1976); Byrd v. Wilson, 701 F.2d 592, 595 n. 2 (6th Cir. 1983);
Westlake, 537 F.2d at 860–61 n.5. Furthermore, “[w]here a prisoner alleges only that the
medical care he received was inadequate, federal courts are generally reluctant to second guess
medical judgments.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (citing
Westlake, 537 F.2d at 860 n. 5).
12
Plaintiff asserts violations of the Eighth Amendment to the Constitution arising from
Defendants’ failure to provide certain diagnostic procedures and medical treatment in addition
the treatment actually received. The essence of Plaintiff’s claim, then, is that Defendants
provided him with inadequate medical care and were negligent in their diagnosis and treatment.
Even assuming that his allegations are true, therefore, the Undersigned finds that Plaintiff has
failed to state an Eighth Amendment claim upon which relief can be granted against Defendants.
D. Plaintiff’s Claims under 42 U.S.C. § 1985(3) and § 1986
42 U.S.C. § 1985(3) provides in relevant part that:
If two or more persons in any State or Territory conspire or go in disguise on the
highway or on the premises of another, for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or Territory from
giving or securing to all persons within such State or Territory the equal
protection of the laws; . . . in any case of conspiracy set forth in this section, if one
or more persons engaged therein do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege of a citizen
of the United States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation, against any one or
more of the conspirators.
During Reconstruction, Congress passed § 1985(3) in order to provide a cause of action
against participants in private conspiracies to deprive others “of rights secured by the law to all.”
Griffin v. Breckenridge, 403 U.S. 88, 101 (1971). “A plaintiff makes out a valid cause of action
under § 1985(3) by demonstrating: (1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and
(4) an injury to either person or property or a deprivation of any right or privilege of a United
States citizen.” Volunteer Med. Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 222-23 (6th Cir.
13
1991). In order to plead a conspiracy under § 1985(3), Plaintiff must allege facts that, if true,
would show that Defendants either acted in concert or in furtherance of a common objective to
injure him. Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998). Conspiracy claims must
be pled with some degree of specificity. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.
1987). Vague and conclusory allegations unsupported by materials facts are not sufficient to
state a conspiracy claim. Id. Section 1986 creates a cause of action for a knowing failure to
prevent wrongful acts pursuant to a conspiracy to interfere with civil rights. 42 U.S.C. § 1986.
Any defendants with knowledge of a §1985(3) conspiracy who, through negligence, fail to
prevent the discriminatory acts can be liable under § 1986.1
In his Complaint, Plaintiff asserts that Defendants conduct in failing to provide certain
diagnostic procedures and medical treatment amounts to a “conspiracy to deprive Plaintiff and
Ohio Department of Rehabilitation and Corrections . . . prison inmates of Plaintiff’s class—being
indigent and over forty (40) years of age requiring immediate and responsive medical treatment
for serious medical injuries/needs—from the equal protection, civil rights, privileges and
immunities under the laws of the United States Constitution.” (ECF No. 3 at 10.) Plaintiff,
however, offers nothing more than the conclusory allegation that Defendants acted in concert.
Plaintiff fails to make sufficient factual allegations to establish any sort of “meeting of the
minds” or to link any of the alleged conspirators in a conspiracy to deprive him of his
constitutional rights. The Undersigned, therefore, find that Plaintiff has failed to state a claim
1
42 U.S.C. § 1986 provides, in relevant part:
Every person who, having knowledge that any wrongs conspired to be done, and
mentioned in section 1985 of this title, are about to be committed, and having
power to prevent or aid in preventing the commission of the same, neglects or
refuses so to do, if such wrongful act be committed, shall be liable to the party
injured . . . for all damages caused by such wrongful act, which such person by
reasonable diligence could have prevented.
14
under 42 U.S.C. § 1985 upon which relief can be granted. Moreover, to the extent Plaintiff
intended to assert a claim under § 1986, this claim likewise fails because he has not pled facts
which demonstrate a conspiracy.
E. Defendants’ Immunity from State Law Claims
The Court is not in a position to determine whether Defendants are immune from
Plaintiff's unspecified state law tort claims. Until the Ohio Court of Claims determines that they
are not immune, however, Plaintiff’s claims are not cognizable. With respect to a state law tort
claim, a federal court sits as a court of the forum state and is bound to apply its substantive law.
Guaranty Trust Co. v. York, 326 U.S. 99, 108–09 (1945). The Sixth Circuit has recognized
“Ohio law requires that, prior to asserting a claim against a state employee in his individual
capacity, the Court of Claims must first determine that the employee is not entitled to the
immunity provided for in Ohio Revised Code § 9.86.” Haynes v. Marshall, 887 F.2d 700, 705
(6th Cir. 1989). Prior to the Court of Claims’ determination, then, there is no claim under Ohio
law upon which relief can be granted against Defendants in their individual capacities. The only
cognizable claims, at least initially, lie against the State of Ohio in the Court of Claims. Id.
(citing Ohio Rev. Code Ann. § 2743.02(F)). Accordingly, the Undersigned finds that the Court
cannot exercise jurisdiction over Plaintiff’s state law tort claims until such time as a cause of
action against Defendants is recognized under Ohio law.
IV. CONCLUSION
For the reasons explained above, the Undersigned RECOMMENDS that Defendants’
Motions to Dismiss be GRANTED. (ECF Nos. 12, 17, 18, & 19.) Defendants’ Motions to Stay
Discovery are, therefore, GRANTED pending final disposition of this Report and
Recommendation. (ECF Nos. 20 & 22.)
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PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, it
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
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 object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] 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 of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when 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 to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.
Date: November 23, 2015
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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