Enyart v. Ohio Department of Rehabilitation and Corrections et al

Filing 23

REPORT AND RECOMMENDATION that 11 MOTION for Judgment on the Pleadings be granted and this case be dismissed. Objections to R&R due by 10/21/2016. Signed by Magistrate Judge Terence P. Kemp on 10/4/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard Enyart,

:

Plaintiff,

:

v.

:

Ohio Dept. of Rehabilitation
and Correction, et al.

Case No. 2:16-cv-161

:

CHIEF JUDGE EDMUND A. SARGUS
Magistrate Judge Kemp

:
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Richard Enyart, an inmate at the Toledo
Correctional Institution (“ToCI”), filed this action on February
19, 2016, pursuant to 42 U.S.C. §1983 alleging violations of his
constitutional rights.

He filed an amended complaint six days

later (Doc. 3), which became the operative pleading in this case.
The defendants, the Ohio Department of Rehabilitation and
Correction (“ODRC”); its Director, Gary Mohr; Brian Wittrup, the
Director of Classification for ODRC; and John Coleman, the Warden
at ToCI, have filed a motion for judgment on the pleadings (Doc.
11).

That motion has been fully briefed and is now ripe for

consideration.

For the reasons set out below, it will be

recommended that the motion for judgment on the pleadings be
granted.
I. Background
The background of this case is thoroughly set out in the
Court’s previous Orders (Docs. 17 & 22) so only a brief summary
is necessary.

Mr. Enyart is an inmate incarcerated at ToCI,

serving a prison term for a number of convictions involving
sexual offenses against children.

Shortly after his arrest for

these crimes, Mr. Enyart was violently assaulted by inmates at
the Franklin County Sheriff’s Department facility, which he
claims was sanctioned by officers at the facility due to the

nature of the crimes for which he was arrested.

There is

currently pending litigation at this Court in relation to those
events.

Enyart v. Franklin County, et al. Case No. 2:09-cv-687

(S.D. Ohio).
Following his 2007 arrest and charges, Mr. Enyart entered a
no contest plea and was sentenced to 365 years in prison.

Mr.

Enyart was then sent to the Corrections Reception Center in
Orient, Ohio, where, he says, the ODRC attempted to classify him
as a general population inmate.

However, following an

investigation, ODRC placed him in protective control.

Sometime

in 2012, Mr. Enyart was incarcerated at Oakwood Correctional
Institution (“OCI”) and was forced to cell with another inmate.
Mr. Enyart’s cellmate physically assaulted him twice, one of the
assaults led to his being sent to the Corrections Medical Center
(“CMC”) for treatment.

Following the assaults at OCI, he was

assigned to a new cell.

(Doc. 3, ¶¶13-16).

Mr. Enyart claims that he was threatened by another cell
mate at OCI, Trevor Teagarden, who “attempted to hire members of
the Aryan Brotherhood to attack [him].”

It appears that Mr.

Enyart spent at least some time in the cell with Mr. Teagarden,
but they were separated before any harm came to him.

Id. at ¶29.

In December of 2015, Mr. Enyart was transferred to ToCI.

He

claims he was told that he would be required to have a cell mate
by the end of the month.

On or about January 7, 2016, Mr. Enyart

says that he was provided a list of inmates and told that he
could pick a roommate or that he would be assigned one.

At the

time of the filing of the complaint, Mr. Enyart asserts that
“[d]efendants have begun the process of double celling the
inmates in the protective custody unit at [ToCI]” and that he
“lives in constant fear” of other inmates.

Mr. Enyart argues

that because of his well-documented history of being threatened
and abused by other inmates, the defendants should classify him
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as a single cell occupancy inmate.

Mr. Enyart states that on

“numerous occasions” the defendants have “attempted” to place him
in a double cell with another individual, but it appears at the
time of the complaint filing he had not been given a cellmate. He
admits that he has suffered no threats, extortions or assaults
while he has been in a single cell at either SOCF or ToCI. He
does not allege that the defendants failed to follow ODRC policy,
or that any threats of or actual violence against him have
occurred during his incarceration at ToCI.

Mr. Enyart states

that he has filed a number of internal grievances seeking
classification as a single cell occupancy inmate and has
exhausted his administrative remedies and seeks injunctive relief
to ensure that he is not placed with a cell mate in the future.
Id. ¶¶17-23, 30-32.
Mr. Enyart asserts that the defendants’ failure to guarantee
him a single cell amounts to deliberate indifference to his
safety and well being, in violation of his Eighth Amendment
rights.

He seeks compensatory and exemplary damages, reasonable

attorney fees and re-classification as a single cell occupancy
inmate.

At the time of the filing of his original complaint Mr.

Enyart separately moved for preliminary injunctive relief seeking
for the defendants to be enjoined from placing him in a double
cell during the pendency of this litigation.
preliminary injunction has been denied.

The motion for a

(Doc. 22).

The Court

will now consider the defendants’ motion for judgment on the
pleadings.
II. Legal Standard
A motion for judgment on the pleadings filed under
Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and
is evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979).

In ruling upon such motion, the Court must accept as true
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all well-pleaded material allegations of the pleadings of the
opposing party, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.

Southern

Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir. 1973).

The same rules which apply to

judging the sufficiency of the pleadings apply to a Rule 12(c)
motion as to a motion filed under Rule 12(b)(6); that is, the
Court must separate factual allegations from legal conclusions,
and may consider as true only those factual allegations which
meet a threshold test for plausibility.

See, e.g., Tucker v.

Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,
inter alia, Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007).
It is with these standards in mind that the instant motion must
be decided.
III. Discussion
First, in respect of ODRC, the defendants correctly argue
that “ODRC is an entity, not a person” subject to suit under 42
U.S.C. §1983.

See Peeples v. Ohio Dept. of Rehab. & Corr., 64

F.3d 663 (6th Cir. 1995).

Mr. Enyart concedes this point, and

agrees that ODRC is not a proper party in this case.

The Court

also notes that the parties agree that the statute of limitations
expired with respect to any claims arising from the 2012 assault
at OCI (Doc. 16 at 7).
A.

Sovereign Immunity

With respect to Mr. Enyart’s claim for damages against
against them in their official capacities, the defendants
correctly assert that they are entitled to Eleventh Amendment
Immunity.

The Eleventh Amendment to the United States

Constitution bars suits against either a state or agencies of a
Edelman v. Jordan, 415 U.S. 651

state by citizens of that state.
(1974).

Under certain circumstances, a suit against an

individual state official may nonetheless be deemed to be a suit
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against the state and therefore barred by the Eleventh Amendment.
The primary test for determining whether the state is the real
party in interest in a suit is whether the source of any funds
from which a damage award would be paid would be the state
treasury.

Edelman, supra.

Additionally, if an individual is

alleged to have only vicarious liability as a result of his
official position, any damage award made (if one were
permissible) would necessarily be against the office rather than
the officeholder and therefore be an award against the state.
See Ford Motor Co. v. Department of the Treasury, 323 U.S. 459
(1945); see also Hall v. Medical College of Ohio, 742 F.2d 299
(6th Cir. 1984), cert. denied 469 U.S. 1113 (1985).

When a suit

is barred by the Eleventh Amendment, the Court lacks jurisdiction
over it and it must be dismissed without prejudice.

Cf. Gwinn

Area Comm. Schools v. State of Michigan, 741 F.2d 840, 846-47
(6th Cir. 1984).
There are three qualified exceptions to Eleventh Amendment
immunity.

See Lawson v. Shelby Cty., 211 F.3d 331, 334–35 (6th

Cir. 2000).

First, a state may waive the protection of the

Amendment by consenting to the suit.

Id.

Second, Congress,

under certain provisions of the Constitution, may abrogate the
sovereign immunity of the states through statute.

Id. at 334.

Third, a federal court may enjoin a state official from violating
federal law.

Ex parte Young, 209 U.S. 123 (1908) (holding that

the Eleventh Amendment does not bar a suit against a State
official for prospective injunctive relief).

Mr. Enyart argues

in his reply brief that Mr. Enyart’s case should not be barred by
the Eleventh Amendment under the Young doctrine because he “does
not wish to be compensated” but wishes to be placed in a single
cell.

His complaint clearly seeks compensatory damages, but it

also seeks permanent injunctive relief

(Doc. 3 at p. 6).

The

individually named defendants are entitled to Eleventh Amendment
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immunity in respect of the claims for damages against them in
their official capacities.

Pursuant to Young, the defendants are

not entitled to Eleventh Amendment immunity in respect of Mr.
Enyart’s claim for permanent injunctive relief.
B.

Permanent Injunctive Relief

Mr. Enyart seeks permanent injunctive relief; specifically,
to require the defendants to categorize him as a single cell
occupancy inmate. Injunctive relief is an extraordinary remedy
that should be granted only after the Court has carefully
considered the following four factors: (1) whether the movant
will succeed on the merits; (2) whether the movant would
otherwise suffer irreparable injury; (3) whether issuance of an
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of an
injunction.

ACLU of Kentucky v. McCreary Cty., 607 F.3d 439, 445

(6th Cir. 2010), citing Amoco Prod. Co. V. Village of Gambell,
480 U.S. 531, 546 n. 12 (1987).

When considering these factors,

courts should first determine whether the movant will succeed on
the merits, and if it is established that the movant will
succeed, then the remaining three factors are to be balanced
against the others to arrive at an ultimate determination.
Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.
2001).

Thus, the Court will determine whether Mr. Enyart’s

complaint could state a constitutional claim under 42
§1983.

U.S.C.

For the purposes of this analysis, the Court accepts all

of his factual allegations in the complaint as true.

See

Southern Ohio Bank, supra, 479 F.2d at 480.
The Eighth Amendment generally prohibits prison officials
from being “deliberately indifferent” to the health or safety of
prison inmates and, as a result, causing them to suffer
unnecessary pain or injury.

In Farmer v. Brennan, 511 U.S. 825,

839 (1994), the Court adopted “subjective recklessness as used in
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the criminal law” as the appropriate definition for deliberate
indifference.

It held that “a prison official cannot be held

liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety ....”
Id. at 837.

Officials must be aware of facts from which they

could conclude that a substantial risk exists and must actually
draw that conclusion.

Id.

Prison officials who know of a

substantial risk to the health or safety of an inmate are free
from liability if “they responded reasonably to the risk, even if
the harm ultimately was not averted.”

Id. at 844.

The issue here is whether, by denying Mr. Enyart a permanent
single cell, the defendants are demonstrating deliberate
indifference to a “substantial risk of physical harm.”
Farmer, supra, 511 U.S. at 839.

See

In the specific context of

threats of harm posed by other inmates, the Court of Appeals has
recognized the duty of prison officials to protect inmates
against assault at the hands of other inmates.

See Wilson v.

Yaklich, 148 F.3d 596, 600 (6th Cir. 1998) (“Without question,
prison officials have an affirmative duty to protect inmates from
violence perpetrated by other prisoners”).

At the same time,

however, it is generally the case that officials, in order to be
liable under the Eighth Amendment, must be aware of a specific
threat to either the plaintiff, or to a class of persons to which
the plaintiff belongs, and there must be objective evidence
substantiating that threat; that is, the risk of harm “must be
based upon more than [the inmate’s] subjective fear.”

Browning

v. Pennerton, 633 F.Supp.2d 415, 430 (E.D. Ky. 2009).

For these

reasons, the Court must determine whether Mr. Enyart’s factual
allegations, accepted as true, show that the defendants were
deliberately indifferent to his safety.

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Mr. Enyart has not alleged facts indicating that he has
received any specific threats from other inmates at ToCI.
Despite experiencing some threats and attacks at other
institutions, most recently in 2014 (the threat by a cellmate at
OCI which never materialized), none of these other than the
assault shortly following his arrest were even allegedly based on
his status as a sex offender.

Mr. Enyart offers a conclusory

statement that the nature of his crimes place him in imminent
danger from other inmates, but other than referencing the attack
in 2007, he does not allege specific facts to support that
statement.

In addition, he is being housed in protective

custody, and does not claim that the defendants are failing to
follow ODRC policy or that there is a systemic risk to the safety
of protective custody inmates at ToCI who are double-celled.

Mr.

Enyart has not alleged that he has actually been double-celled at
ToCI, only that the defendants “have begun the process of double
celling the inmates in the protective custody unit..”
Even accepting as true his subjective fear of other inmates,
Mr. Enyart does not allege any personal involvement in the
failure to protect him by either of the three named defendants.
In his responsive memorandum, Mr. Enyart argues that although he
makes no specific allegations involving the named defendants, “it
can be assumed” that they “did something” and knew or should have
known that Mr. Enyart’s constitutional rights were being violated
and that he was in danger.

He asserts that he would need to

conduct discovery in order to know whether the defendants played
a personal role in the alleged actions (or inaction).
rejects this argument.

The Court

“Once it is clear that a plaintiff has

stated a claim that, if true, would entitle him to relief,
matters of proof are appropriately relegated to other stages of
the trial process.”

Twombly, supra, 550 U.S. at 577.

A

complaint cannot be used as a “fishing expedition” for
information where it fails to state a claim on its face. Id.

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For

these reasons, the Court cannot conclude that Mr. Enyart has pled
a plausible Eighth Amendment claim.

Thus, the Court need not

consider the other factors in determining whether he is entitled
to injunctive relief.
C.

Qualified Immunity

The defendants argue that the named individuals are entitled
to qualified immunity for two reasons: (1) Mr. Enyart has failed
to sufficiently plead the causation requirement under 42 U.S.C.
§1983 and (2) he fails to sufficiently plead an Eighth Amendment
violation for failure to protect.

Ordinarily, the Court must

undertake a three-step analysis in determining whether qualified
immunity applies. First, the Court should identify the specific
constitutional right that the defendant or defendants allegedly
violated. Second, the Court should determine whether, viewing the
facts most favorably to the plaintiff, a violation of that right
has been established. Finally, the Court should decide whether a
reasonable state official would have known, at the time the
action occurred and in light of the “clearly established law,”
that the plaintiff's constitutional rights had been violated. If
so, qualified immunity is unavailable. See Dickerson v.
McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). This Court has
discretion to determine which of the prongs of the qualified
immunity analysis should be addressed first in view of the
particular circumstances of a given case.

Pearson v. Callahan,

555 U.S. 223 (2009). If the Court concludes that a state employee
in the defendants’ position would reasonably believe that his
actions did not abridge Mr. Enyart’s constitutional rights,
whether a violation of his Eighth Amendment rights actually
occurred need not be decided.

Colvin v. Caruso, 605 F.3d 282,

290 (6th Cir. 2010).
As concluded above, the Court does not find that Mr. Enyart
has pled the essential elements of an Eighth Amendment
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“deliberate indifference” claim.

Therefore the defendants are

entitled to qualified immunity as to any damages claims.
IV.

Recommended Disposition

For all of these reasons, it is recommended that the
defendants’ motion for judgment on the pleadings (Doc. 11) be
granted and this case be dismissed.
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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