Hendricks v. Mohr et al

Filing 49

ORDER granting in part and denying in part 40 Defendants' Motion to Dismiss and adopting the 44 Report and Recommendations. Signed by Judge James L. Graham on 7/14/17. (sem)(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
Benjamin Hendricks,
Plaintiff,
v.

Case No. 2:15-cv-3130

Gary Mohr, et al.,
Defendants.
OPINION AND ORDER
This is an action brought pursuant to 42 U.S.C. §1983 by
plaintiff Benjamin Hendricks, a former Ohio state prison inmate,
against

Gary

C.

Mohr,

Director

of

the

Ohio

Department

of

Rehabilitation and Correction (“ODRC”), other ODRC officials,
prison health care providers, and fifty John/Jane Doe defendants.
Plaintiff filed his original complaint on August 10, 2012.
Case No. 2:12-cv-729.
his

Eighth

treatment

Plaintiff alleged that defendants violated

Amendment
for

See

rights

various

by

health

refusing
problems,

to

provide

including

medical

diversion

colitis,1 a condition discovered during plaintiff’s recovery from
a 2009 hernia repair.

On May 21, 2013, a majority of the claims in

the complaint were dismissed for failure to state a claim pursuant
to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §1915A.

On September 6,

2013, plaintiff filed a motion for leave to amend his complaint,

1

Diversion colitis is the “inflammation of a segment of
distal colon that has been disfunctionalized by diversion of the
fecal stream by subtotal colectomy [excision of a portion of the
colon]; it may be asymtomatic or may be marked by tenesmus
[ineffectual and painful straining at stool], anorectal pain, and
bloody rectal discharge.” Dorland’s Illustrated Medical Dictionary
383-84, 1882 (32d ed. 2012).

and tendered a proposed amended complaint.

By order dated May 16,

2014, the magistrate judge granted in part the motion to amend, and
permitted plaintiff to amend his complaint to assert certain
claims, including an Eighth Amendment claim relating to the failure
to treat plaintiff’s diversion colitis.

Instead of filing an

amended complaint, on May 21, 2014, plaintiff moved to voluntarily
dismiss his complaint without prejudice. The motion was granted on
November 25, 2014.
On October 5, 2015, within the one-year period for refiling
under Ohio Rev. Code §2305.19, Ohio’s savings statute, plaintiff
filed a motion to reopen the case.

By order dated March 15, 2016,

the motion was granted, and the clerk was directed to open a new
civil action (the instant case number), with an effective filing
date of October 5, 2015.

After obtaining several extensions,

plaintiff filed his complaint in this case on August 30, 2016.

On

January 19, 2017, the defendants moved pursuant to Fed. R. Civ. P.
12(b)(2) and (6) to dismiss the complaint, arguing: (1) that
plaintiff failed to perfect service on certain defendants; (2) that
plaintiff’s

claims

are

barred

by

the

two-year

statute

of

limitations for §1983 actions in Ohio, see Browning v. Pendleton,
869 F.2d 989, 992 (6th Cir. 1989); and (3) that defendants are
entitled to dismissal on qualified immunity grounds.
On May 31, 2017, the magistrate judge issued a report and
recommendation,

recommending

that

all

claims

against

Dr.

Christenson, Christine Hall, Dr. Akasubo, Inam Khan, Steve Huffman,
John DesMarais and the fifty John/Jane Doe defendants be dismissed
pursuant to Fed. R. Civ. P. 4(m) for lack of service.
14.

Doc. 44, p.

The magistrate judge stated that he was not recommending

2

dismissal on qualified immunity grounds.

Doc. 44, p. 14.

The magistrate judge further recommended that plaintiff’s
Eighth

Amendment

claims

relating

to

his

shoulder

prosthesis,

Crohn’s disease, hernias and pain management be dismissed as barred
by the statute of limitations. Doc. 44, pp. 11-14. The magistrate
judge concluded that the only claim preserved under the Ohio
savings statute is the Eighth Amendment claim alleging the failure
to treat the diversion colitis condition asserted against ODRC
Chief Medical Officer John Gardner; ODRC Medical Director Dr.
Andrew Eddy; Dr. Arthur Hale, Chief Medical Officer at the Pickaway
Corrections Institute (“PCI”); and Anthony Ayres, Health Care
Administrator at PCI.

Doc. 44, pp. 11-14.

The magistrate judge

relied on plaintiff’s allegations that two years after the 2009
discovery of the diversion colitis condition (i.e., sometime in
2011), Gardner approved the use of enemas for treatment of the
condition, but that these treatments were discontinued and the
above

defendants

refused

to

resume

these

treatments.

The

magistrate judge concluded that because this alleged decision not
to resume the approved treatments was made within the limitations
period, which began on August 10, 2010, this claim was not barred.
Doc. 44, p. 11.
The

magistrate

judge

observed

that

the

savings

statute

preserved this claim only to the extent that it existed at the time
of plaintiff’s voluntary dismissal of the action on November 25,
2014.
time

Doc. 44, p. 13.
only

addressed

Because the diversion colitis claim at that
the

time

period

through

the

filing

of

plaintiff’s motion to amend on September 6, 2013, the magistrate
judge recommended that the motion to dismiss be denied as to this

3

claim only for constitutional violations occurring within the
limitations period through September 6, 2013.

Doc. 44, pp. 13-14.

On June 13, 2017, defendants filed a partial objection to the
report and recommendation. Defendants object to the recommendation
to deny dismissal of the Eighth Amendment diversion colitis claim
against defendants Gardner, Eddy, Hale and Ayres on statute of
limitations and qualified immunity grounds.

Doc. 45.

Plaintiff

did not file objections to the report and recommendation.
II. Standards of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).

Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or
recommendations

made

by

the

magistrate

judge.”

28

U.S.C.

§636(b)(1).
In ruling on a motion to dismiss under Rule 12(b)(6), the
court must construe the complaint in a light most favorable to the
plaintiff, accept all well-pleaded allegations in the complaint as
true, and determine whether plaintiff undoubtedly can prove no set
of facts in support of those allegations that would entitle him to
relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008).

To

survive a motion to dismiss, the “complaint must contain either
direct or inferential allegations with respect to all material
elements necessary to sustain a recovery under some viable legal
theory.”

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

4

While the complaint need not contain detailed factual allegations,
the “[f]actual allegations must be enough to raise the claimed
right to relief above the speculative level,” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007), and must create a reasonable
expectation that discovery will reveal evidence to support the
claim, Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776,
780 (6th Cir. 2007).
III. Defendants’ Objection
A. Plaintiff’s Allegations - Eighth Amendment Claim
To establish an Eighth Amendment violation based on the
failure to provide medical care, a prisoner must show that he has
a serious medical condition and that the defendants displayed a
deliberate indifference to his health. Farmer v. Brennan, 511 U.S.
825, 839 (1994).

A medical need is objectively serious if it is

one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.

Blackmore v.

Kalamazoo

2004).

County,

390

F.3d

890,

897

(6th

Cir.

The

seriousness of a prisoner’s medical needs may also be demonstrated
by

the

effect

of

delay

in

administration of medication.

treatment,

including

the

delayed

Id. at 897; see also Westlake v.

Lucas, 537 F.2d 857, 860-861 (6th Cir. 1976)(prisoner states a
claim when he alleges that prison authorities denied reasonable
requests for medical treatment in the face of an obvious need for
such attention where the inmate is thereby exposed to undue
suffering or a threat of tangible residual injury; district court
erred in dismissing case at the pleading stage where prisoner
alleged that he was forced to endure a period of intense discomfort

5

because his pleas for medical assistance went unheeded).

In

evaluating the seriousness of a medical condition, courts consider
a variety of factors, including whether the condition is one that
a doctor or other health care professional would find worthy of
treatment, and whether it causes (or, if left untreated, has the
potential to cause) chronic and substantial pain.

Chance v.

Amrstrong, 143 F.3d 698, 702-03 (2d Cir. 1998). In addition, to be
liable under the Eighth Amendment deliberate indifference standard,
officials must subjectively know of and disregard an excessive risk
to inmate health or safety, must be aware of facts from which they
could conclude that a substantial risk exists and must actually
draw that conclusion.
The

allegations

Farmer, 511 U.S. at 844.
in

the

current

complaint

concerning

plaintiff’s colitis condition are as follows:
53) During recovery from the 2009 hernia repair it was
discovered Plaintiff also had diversion colitis and the
treating physician at OSUMC started short-chain fattyacid enemas as the normal/standard treatment[.]
54) Upon Plaintiff’s discharge from OSUMC this treatment
was discontinued by Defendant Akasubo with no reason
given even though symptoms persisted[.]
55) When Plaintiff was sent back to PCI he complained to
his treating physician and was told Defendant DesMarais
refused to approve the enemas because they were nonformulary[.]
56) After 2 years of complaints, bleeding and pain
Plaintiff had a meeting with Defendant Gardner who
initially approved the enemas[.]
57) Plaintiff experienced trauma, pain and bleeding
during a treatment due to an anal stricture which was
later discovered[.]
58) After this was resolved enough to allow treatment
Defendants Gardner, Eddy, Hall, Christenson, Hale, Khan
6

and Ayres declined to resume treatment due to “cost and
availability” of the enemas[.]
59) Plaintiff continued to suffer pain, bleeding, cramps,
etc., due to no treatment and Dr. Levine decided to have
him consult with Dr. Alan Harzman for either ileal-anal
anastomosis or proctectomy for issues with Diversion
Colitis[.]
60) Plaintiff met with Defendant Hale after Dr. Levine
and was told there was little chance of himself, Gardner,
Eddy, Hall, Christenson or Ayres approving the surgical
consult but [he] would submit the request[.]
61) After further complaints Plaintiff was finally
approved to see Dr. Harzman but because the consult
occurred near the end of Plaintiff’s [incarceration] in
2014 Dr. Harzman stated he could not get anything done
quick enough and more than likely he would have to wait
until after he was released from prison[.]
62) Plaintiff suffered pain, bleeding, mental anguish and
other medical complications at the hands of Defendants
Akasubo, DesMarais, Gardner, Eddy, Hall, Christenson,
Hale, Khan and Ayres from November 2009 to November
2014[.]
Doc. 22, Complaint.

These allegations substantially mirror the

allegations contained in the proposed amended complaint submitted
by plaintiff on September 6, 2013.
32-1.

See Case No. 2:12-cv-729, Doc.

In granting leave to amend the complaint as to this claim,

the magistrate judge concluded that plaintiff’s allegations were
sufficient

to

plead

an

Eighth

Amendment

claim

of

deliberate

indifference to plaintiff’s diversion colitis condition.
No. 2:12-cv-729, Doc. 41, p. 23.

See Case

This court agrees that these

allegations are sufficient to allege that plaintiff has a serious
medical condition which was diagnosed and recognized by a physician
and which caused chronic pain, bleeding and cramps, and that
defendants Gardner, Eddy, Hale and Ayres acted with deliberate

7

indifference in not providing treatment for this condition.
B. Statute of Limitations
As noted by the magistrate judge, the limitations period
begins to run when a plaintiff knows or has reason to know of the
injury which is the basis of his action.

Kuhnle Bros., Inc. v.

County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997).
original complaint was filed on August 10, 2012.

Plaintiff’s
Thus, claims

based on violations of plaintiff’s constitutional rights which
occurred and were known to him prior to August 10, 2010, would be
barred.

The actual actions by prison authorities refusing medical

care are the discrete unlawful acts that trigger the statute of
limitations.

Bruce v. Correctional Medical Services, Inc., 389 F.

App’x 462, 466-67 (6th Cir. 2010).

The limitations period is not

extended by passive inaction or the continual ill effects from an
original

violation.

Eidson

v.

State

of

Tennessee

Dep’t

of

Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007).
Defendants note that plaintiff knew about the defendants’
refusal to provide enema treatment for his diversion colitis upon
his return to PCI following hernia surgery in 2009.

However, the

magistrate judge’s recommendation on the limitations question is
not based on the initial 2009 refusal to treat plaintiff’s colitis
with enemas, an act outside the limitations period commencing
August 10, 2010.

Rather, the magistrate judge relied exclusively

on plaintiff’s allegations that two years after the hernia surgery
(some

time

in

2011,

within

the

limitations

period),

Gardner

approved the use of enemas, but thereafter, the defendants decided
not to continue these treatments.

See Doc. 44, p. 11.

The court

agrees with the magistrate judge that this 2011 decision not to

8

resume treatments constituted a new and “actual action” within the
limitations period, see Bruce, 389 F. App’x at 466-67, which was
sufficient to preserve this claim under the Ohio savings statute.
Plaintiff’s Eight Amendment claim concerning the lack of treatment
of his colitis, insofar as it is based on this 2011 decision and
any other subsequent alleged actions through September 6, 2013, are
not barred by the statute of limitations, and this branch of
defendants’ objection is denied.
C. Qualified Immunity Defense
Defendants also object to the magistrate judge’s decision not
to

recommend

immunity.

dismissal

Under

the

based

on

qualified

their
immunity

defense

of

doctrine,

qualified
government

officials are entitled to qualified immunity for discretionary acts
that do not violate clearly established federal statutory or
constitutional rights of which a reasonable person would have
known.

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).

The

qualified immunity analysis involves asking whether: (1) the facts,
viewed in the light most favorable to plaintiff, show a violation
of a constitutional right; and (2) the right at issue was clearly
established at the time of the alleged misconduct; either of these
prongs may be addressed first.
232-36 (2009).

Pearson v. Callahan, 555 U.S. 223,

Qualified immunity shields individuals not just

against liability, but against the suit itself.

Id., 555 U.S. at

231.
As the magistrate judge noted, defendants’ motion to dismiss
contains only a general discussion of qualified immunity cases,
with no argument as to why they are entitled to invoke that defense
in this case.

See Doc. 40, pp. 6-7.

9

In their reply, defendants

note that plaintiff did not refer to their discussion of qualified
immunity in his response, despite the fact that plaintiff bears the
ultimate burden of proving that the defendants are not entitled to
qualified immunity.

From plaintiff’s silence on this issue,

defendants conclude that “Plaintiff does not contest Defendants’
entitlement” to the qualified immunity defense.

Doc. 43, p. 6.

This court cannot reasonably infer from plaintiff’s failure to
respond to defendants’ brief reference to the qualified immunity
defense in their motion that plaintiff has conceded this issue. In
light of the general, bare-bones nature of defendants’ discussion
of the qualified immunity defense, plaintiff would be hard pressed
to make a meaningful response. The court also notes that plaintiff
is not required to plead facts in the complaint which respond to or
refute

defendants’

qualified

immunity

defense.

See

Goad

v.

Mitchell, 297 F.3d 497, 501-05 (6th Cir. 2002)(holding that there
is no heightened pleading requirement for civil rights plaintiffs
in cases in which the defendant raises the affirmative defense of
qualified immunity, citing Crawford-El v. Britton, 523 U.S. 574
(1998)).

In fact, although the ultimate burden of proof is on

plaintiff to show that the defendants are not entitled to qualified
immunity, the defendants bear the initial burden of putting forth
facts that suggest that they were acting within the scope of their
discretionary

authority.

Stoudemire

v.

Michigan

Dep’t

of

Corrections, 705 F.3d 560, 568 (6th Cir. 2013). Defendants did not
do so in their motion to dismiss.
For the first time in their objection, see Doc. 45, p. 8,
defendants note the allegation that plaintiff “experienced trauma,
pain and bleeding during a treatment due to an anal stricture which

10

was later discovered[.]” See Complaint, ¶ 57. From this language,
defendants

argue

that

plaintiff

“acknowledges

that

it

was

appropriate to discontinue ‘enemas’” and that plaintiff “concedes”
that it was not deliberate indifference for defendants to cease
providing the enemas as they were causing plaintiff trauma, pain
and bleeding.

Doc. 45, p. 8

Defendants contend that in light of

the side effects mentioned in paragraph 57, they are entitled to
qualified immunity because they acted reasonably in discontinuing
treatment and did not deprive plaintiff of a constitutional right.
Doc. 45, p. 8.
Defendants’ failure to make this latest argument before the
magistrate judge constitutes a waiver of that argument for purposes
of this report and recommendation.

See Murr v. United States, 200

F.3d 895, 902 n. 1 (6th Cir. 2000).

Even assuming that this

argument is properly asserted for the first time in the objection,
it ignores the next allegation in the complaint, which states that
after the adverse side effects were “resolved enough to allow
treatment[,]”

the

Complaint, ¶ 58.
support

defendants

declined

to

resume

treatment.

The language in the complaint simply does not

defendants’

arguments

that

plaintiff

“concedes”

or

“acknowledges” their entitlement to qualified immunity.
Furthermore, the Sixth Circuit has noted that although a
defendant’s

entitlement

to

qualified

immunity

is

a

threshold

question to be resolved at the earliest possible point, “it is
generally inappropriate for a district court to grant a 12(b)(6)
motion to dismiss on the basis of qualified immunity.”
Campbell, 779 F.3d 421, 433 (6th Cir. 2015).

Wesley v.

Rather, the earliest

possible point “is usually summary judgment and not dismissal under

11

Rule 12.”

Id. at 433-34.

See also Grose v. Caruso, 284 F. App’x

279, 283-84 (6th Cir. 2008)(in case alleging Eighth Amendment claim
of inadequate medical treatment, Rule 12(b)(6) motion to dismiss on
basis of qualified immunity was premature; the subjective state of
mind of prison officials was a fact-specific inquiry, and plaintiff
had not yet had the opportunity to initiate discovery or to develop
a factual record upon which the qualified immunity determination
could be based).

Defendants make their arguments concerning the

reasonableness of their treatment decisions before discovery and
without

the

benefit

of

any

medical

evidence

in

the

record.

Dismissal on the grounds of qualified immunity would be premature.
III. Conclusion
In accordance with the foregoing, the court agrees with the
report and recommendation (Doc. 44), and it is hereby adopted.
Defendants’ objection (Doc. 45) is denied.

The motion to dismiss

(Doc. 40) is granted in part and denied in part.

All claims

against Dr. Christenson, Christine Hall, Dr. Akasubo, Inam Khan,
Steve Huffman, John DesMarais, and the John/Jane Doe defendants are
dismissed without prejudice pursuant to Rule 4(m).

All other

claims are dismissed with the exception of the timely Eighth
Amendment claim relating to the failure to treat plaintiff’s
diversion colitis through September 6, 2013, against John Gardner,
Dr. Andrew Eddy, Dr. Arthur Hale and Anthony Ayres.

Date: July 14, 2017

s/James L. Graham
James L. Graham
United States District Judge

12