Davis v. Mohr et al
Filing
23
REPORT AND RECOMMENDATION - the Court recommends that the two motions for preliminary injunction (Docs. 9 and 14) be denied (although the Court should grant Mr. Davis' two motions, Docs. 16 and 17, to supplement those motions), and that Defenda nts' motions to dismiss (Docs. 11 and 15) be denied. Objections to R&R due by 4/1/2016. Signed by Magistrate Judge Terence P. Kemp on 3/15/2016. (agm)(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
Carlton Davis,
:
Plaintiff,
Gary Mohr, et al.,
Case No. 2:15-cv-2739
:
v.
:
CHIEF JUDGE EDMUND A. SARGUS
Magistrate Judge Kemp
:
Defendants.
:
REPORT AND RECOMMENDATION
Plaintiff Carlton Davis, an inmate at the Pickaway
Correctional Institution, filed this action under 42 U.S.C. §1983
alleging violations of his Eighth Amendment rights as a result of
the conduct of defendants Gary Mohr, Dr. Eddy, Dr. Hale, Missy
Rousch, Heather Hagan and Members of the Collegiate Review Board
(named as a defendant but never served).
Mr. Davis has filed two
motions for preliminary injunctive relief to require the
defendants to accommodate certain of his medical requests and
cease retaliatory actions towards him.
Certain defendants have
moved to dismiss the complaint and motion for injunctive relief.
For the following reasons, the Court will recommend that the
motions for preliminary injunction (Doc. 9 and 14) and motions to
dismiss (Doc. 11 and 15) be denied.
I.
Factual Background
Mr. Davis contends that in 2013, as an inmate at the
Pickaway Correctional Institution, he was diagnosed with a 75%
blockage of his heart while being seen for emergency medical
treatment at the OSU Wexner Medical Center.
He alleges that the
providers at OSU who oversaw this treatment informed prison
officials that he required treatment by a heart specialist, but
no specific time frame within which the treatment must be
completed is set out in the complaint.
Plaintiff claims that he
is at serious risk of substantial harm because more than two
years have passed since the recommendation and he has not
received the specialist treatment, despite the seriousness of his
condition and his family health history.
Mr. Davis also has a
knee condition, details of which are not set out in the
pleadings, other than the condition causes him much pain and
apparently requires an operation to repair.
He states that he
was told by doctors attending to his knee that due to his heart
blockage they did not believe it was advisable to put him under
general anesthesia for the knee surgery until his heart blockage
was significantly lowered.
Mr. Davis was advised that a surgery
to repair the blockage would be appropriate once the blockage
reached 80%.
He alleges that due to the lack of adequate and
timely medical treatment he has suffered needless infliction of
ongoing pain and suffering since 2013, that the delay in
repairing his knee is likely to lead to a permanent partial or
total disability.
Mr. Davis has now filed motions for injunctive relief
stating that at least some of the defendants have retaliated
against him upon learning of his filing of this action.
He says
that despite a clean prison conduct record, defendants have
subjected him to numerous multiple daily shakedowns, unnecessary
strip searches, time in segregation, and further delay to his
medical treatment.
He also claims that the defendants have
willfully refused to provide him to access to adequate pain
relief for his severe ongoing pain and permitted the unacceptable
delay of his heart and knee treatment, causing him risk of severe
bodily harm.
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II.
Motion for Preliminary Injunction
The legal test for issuing a preliminary injunction involves
balancing four factors- whether the plaintiff will suffer
irreparable injury if relief is not granted, whether the
plaintiff has shown a strong or substantial likelihood of success
on the merits, and how the grant or denial of relief would affect
both public and private interests. See, e.g., Workman v.
Bredesen, 486 F.3d 896, 905 (6th Cir. 2007) (describing the
factors as “(1) whether the claimant has demonstrated a strong
likelihood of success on the merits, (2) whether the claimant
will suffer irreparable injury in the absence of a stay, (3)
whether granting the stay will cause substantial harm to others,
and (4) whether the public interest is best served by granting
the stay”).
“No single factor will be determinative as to the
appropriateness of equitable relief ....”
Six Clinics Holding
Corp., II v. Cafcomp Systems, Inc., 119 F.3d 393, 400 (6th Cir.
1997), citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th
Cir. 1985). Rather, these factors are to be balanced, and “[a]
finding that the movant has not established a strong probability
of success on the merits will not preclude a court from
exercising its discretion to issue a preliminary injunction if
the movant has, at a minimum, ‘show[n] serious questions going to
the merits and irreparable harm which decidedly outweighs any
potential harm to the defendant if the injunction is issued.’ ”
Gaston Drugs, Inc. v. Metropolitan Life Ins. Co., 823 F.2d 984,
988 n. 2 (6th Cir. 1987) (quoting Friendship Materials, Inc. v.
Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.1982)); see also
Frisch's Restaurants v. Elby's Big Boy, 670 F.2d 642, 651 (6th
Cir. 1982). Nevertheless, “irreparable injury is generally
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required to warrant injunctive relief,” Kendall Holdings, Ltd. v.
Eden Cryogenics LLC, 630 F.Supp.2d 853, 866 (S.D. Ohio 2008), so
that if the injury which the plaintiff seeks to prevent is
compensable by a monetary damages award, there is usually no
basis upon which to grant any type of injunction, no matter how
strong a showing of likelihood of success on the merits is made.
Moreover, it is well established precedent that courts ought to
afford appropriate deference to prison officials in the day-today management of institutions.
Thomas v. Woolum, 337 F.3d 720
(6th Cir. 2002).
Mr. Davis’ first motion for preliminary injunction seeks
relief from the defendants’ alleged retaliatory treatment in
response to his legal action.
He later filed an additional
motion for a preliminary injunction and supplemental materials,
asking that defendants be ordered to facilitate needed medical
care, off-site treatment, provide adequate pain management and to
cease their retaliatory behavior.
A prisoner’s claim that prison
officials retaliated against him is grounded in the First
Amendment.
1999).
Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir.
A retaliation claim has three elements: (I) the prisoner
engaged in protected conduct; (ii) an adverse action was taken
against the prisoner that “would deter a [prisoner] of ordinary
firmness from continuing to engage in that conduct;” and (iii) a
causal connection exists between the first two elements, i.e. the
person being accused performed the adverse actions intentionally
due to the prisoner’s engagement in protected conduct.
Thomas v.
Eby, 481 F.3d 434.440 (6th Cir. 2007).
In this instance Mr. Davis is engaging in the protected
conduct of filing a lawsuit against prison officials for alleged
constitutional violations.
For the purposes of this analysis the
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Court will accept that Mr. Davis did suffer the adverse actions
of numerous shakedowns, strip searches, insufficient pain relief
and medical treatment, and transfer to segregation for an
unspecified period of time.
However, he does not provide facts
that would suggest that the adverse conduct was a result of the
defendants’ retaliation against him for filing a lawsuit.
Mr.
Davis does not list any individually named defendants as having
personally performed or directed these acts.
The mere fact that
Mr. Davis was subjected to adverse conduct following his exercise
of protected conduct is insufficient to establish a causal link.
For these reasons the allegations as submitted are insufficient
to establish a strong likelihood of success on the merits.
With respect to Mr. Davis’ request that the defendants be
ordered to arrange his requested medical care, the Court is
guided in its analysis by Rhinehart v. Scutt, 509 Fed.Appx. 510
(6th Cir. 2013).
The plaintiff in that case sued prison
officials and prison physicians, alleging a violation of his
Eighth Amendment rights by permitting and/or causing a lengthy
delay in his access to specialist treatment for a serious liver
condition.
He sought an injunction which would order prison
officials to have him seen by a liver specialist, which the
district court denied.
Prior to adjudication of the proceedings,
the inmate had a serious health emergency in relation to his
liver condition that then required him to be seen by a liver
specialist.
The appellate court upheld the district court’s
denial of the motion because (I) the plaintiff was not able to
show likely success on the merits as he had not alleged more than
a difference of opinion with respect to his treatment and that
there was no evidence presented that his pain was caused
deliberately by prison officials or their neglect; (ii) it was
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not clear error to make a factual determination that waiting for
an adjudication on the merits of the case would not irreparably
harm him; (iii) the balance of equities weighed against a
preliminary injunction; and (iv) the public interest in leaving
the administration of state prisons to state prison
administrators weighed against preliminary injunctive relief.
Like the plaintiff in Rhinehart, Mr. Davis is not able to
show likely success on the merits.
He has submitted insufficient
evidence to show that he would suffer irreparable harm without
injunctive relief or that his pain was deliberately caused by
defendants.
Mr. Davis acknowledges in his supplemental filing of
November 30, 2015, that he is now receiving at least some of the
medical care he has been seeking, so it may well be that at least
some of his issues raised in the motion have been resolved.
Moreover, the balance of equities and the public interest in
courts intervening in the day-to-day operation of prisons weighs
against granting injunctive relief in this case.
For the foregoing reasons, Mr. Davis’ motions for
preliminary injunction should be denied.
III. Motion to Dismiss
Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a
complaint which fails to state a claim upon which relief may be
granted.
In applying this standard, a court must presume all
factual allegations in the complaint to be true, drawing all
reasonable inferences in favor of the non-moving party.
To
establish a prima facie claim under §1983, a plaintiff must
satisfy two elements: (1) that defendants acted under color of
state law, and (2) that defendants deprived plaintiff of a
federal statutory or constitutional right.
Defendants’ two motions at issue, while titled “motion to
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dismiss,” are actually responses to the motion for preliminary
injunctive relief.
They do not apply the 12(b)(6) criteria or
analyze the complaint under applicable law.
The Court will not
make a determination of the sufficiency of the complaint based on
these filings.
Defendants do raise an argument in one of their reply briefs
that the complaint should be dismissed because it was filed
outside the two-year statute of limitations applicable to claims
under §1983.
A statute of limitations begins to run when the
plaintiff knows or has reason to know of the injury that is the
basis of the action.
2005).
Kelly v. Burks, 415 F.3d 558, 561 (6th Cir.
Defendants argue that the statute of limitations in this
case began to run on or about May 13, 2013, the date the heart
blockage was diagnosed and Mr. Davis was made aware of the need
for specialist treatment.
It is worth noting that the complaint
alleges that medical treatment was unconstitutionally delayed, a
claim which may not have accrued at the time of initial
diagnosis.
Defendants do not address this issue.
Further, it is
improper to raise arguments for the first time in a reply
memorandum, thereby depriving the opposing party of an
opportunity to respond.
For these reasons, the Court also
declines to recommend dismissal of the case on the basis of the
expiration of the statute of limitations.
IV.
Recommendation
For the reasons stated above, the Court recommends that the
two motions for preliminary injunction (Docs. 9 and 14) be denied
(although the Court should grant Mr. Davis’ two motions, Docs. 16
and 17, to supplement those motions), and that Defendants’
motions to dismiss (Docs. 11 and 15) be denied.
Within fourteen
days of any order adopting this Report and Recommendation,
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Defendants should either file an answer or a properly-supported
motion to dismiss.
V.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
A judge
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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