Ashdown v. Buchanan et al

Filing 24

REPORT AND RECOMMENDATIONS: It it is RECOMMENDED that 15 Defendants Motion to Dismiss be GRANTED. Objections to R&R due by 12/18/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on December 4, 2017. (jlk)(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
BRANDON J. ASHDOWN,
Plaintiff,
Civil Action 2:17-cv-495
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

TIM BUCHANAN, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’ Motion to Dismiss (ECF
No. 15.). Plaintiff did not file a Response in this matter. For the reasons that follow, it is
RECOMMENDED that Defendants’ Motion to Dismiss be GRANTED.
I. BACKGROUND
Plaintiff, a prison inmate under the custody and control of the Ohio Department of
Rehabilitation and Correction (“ODRC”), brings his claims pursuant to 42 U.S.C. § 1983
alleging that Defendants have been deliberately indifferent in their treatment of his inguinal
hernia. (ECF No. 1 at 6.)
In his Complaint, Plaintiff alleges that he suffered from an inguinal hernia since August
2012. (Id.) According to Plaintiff, ODRC officials were aware of his hernia from the beginning
of his incarceration in April 2014 but did not treat his condition until June 5, 2015. (Id.)
Plaintiff alleges that, in the interim, he did not receive a bottom rack restriction for “several
months” and did not receive pain medication at all. (Id.)

Plaintiff’s Complaint states that he underwent surgery at The Ohio State University
medical Center (“OSU”) on June 5, 2015. (Id.) Plaintiff claims that he left surgery at
approximately 11:30 a.m. and that approximately one hour later was “handcuffed, belly chained
and shackled, placed in a wheel chair and wheeled to an inmate holding cage.” (Id.) There,
Plaintiff alleges, he was forced to sit on a wooden bench with no back support for more than
three hours before officials transported him back to ODRC’s Franklin Medical Center (“FMC”).
(Id.) Plaintiff claims he was at FMC for five days and only received Tylenol 3 twice a day,
rather than the Percocet 5 prescribed by OSU’s doctors. Plaintiff also alleges that, on June 10,
2015, he “was again handcuffed, belly chained and shackled, placed in a room with a hard steel
bench and made to sit there in agony for 6 ½ hours.” (Id.) According to Plaintiff’s Complaint,
he arrived back at Noble Correctional Institution (“NCI”) at approximate 5:00 p.m. that day,
after the doctor had left work for the day. (Id. at 7.) As a result, Plaintiff claims, he did not
receive any medical care until the following afternoon when he saw the doctor, who discontinued
Plaintiff’s pain medication. (Id.) According to Plaintiff, he then filed at least one grievance to
Defendant Sawyer. (Id.) Plaintiff’s Complaint states that approximately two weeks later,
Defendant Sawyer responded to Plaintiff’s grievance, and Plaintiff began receiving Naproxen
500 mg to manage his pain. (Id.)
Plaintiff seeks $10,000,000.00 in compensatory damages and $10,000,000.00 in punitive
damages jointly and severally against each defendant. (Id. at 9.) On September 27, 2017,
Defendants filed their Motion to Dismiss. (ECF No. 15.) On November 3, 2017, the Court
issued an order cautioning Plaintiff that failure to respond would lead to this Court ruling on
Defendants’ Motion without a Response. (ECF No. 21.) In the same Order, the Court sua
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sponte granted Plaintiff fourteen additional days in which to file any response. (Id.) Seventeen
days more have now elapsed since that already extended deadline.
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
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).
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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)).
III. Analysis
A. Section 1983 Claims
Plaintiff brings his Eighth Amendment deliberate indifference 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 her 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).

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1. Official Capacity Claims
In a Section 1983 case, official capacity claims for money are barred by the Eleventh
Amendment. “‘[A] suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office,’ which is ‘no different from a suit
against the State.’” McCoy v. Michigan, 369 F. App’x 646, 654 (6th Cir. 2010) (quoting Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71(1989)). The Eleventh Amendment of the United
States Constitution operates as a bar to federal-court jurisdiction when a private citizen sues a
state or its instrumentalities unless the state has given express consent. Pennhurst St. Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th
Cir. 2000). “It is well established that § 1983 does not abrogate the Eleventh Amendment.”
Harrison v. Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10, 2013) (citing
Quern v. Jordan, 440 U.S. 332, 341 (1979)). Because Ohio has not waived its sovereign
immunity in federal court, it is entitled to Eleventh Amendment immunity from suit for monetary
damages. Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Thus, to the extent
Plaintiff brings his claims for money damages against Defendants in their official capacities,
dismissal is appropriate. See Wingo v. Tenn. Dept. of Corrs., 499 F. App’x 453, 454 (6th Cir.
2012) (affirming trial court’s dismissal of inmate’s claims against state agency, explaining that
the department and the prison were entitled to Eleventh Amendment immunity); Harrison v.
Michigan, 2013 WL 3455488 at *3 (same).
1. Individual Capacity Claims
Plaintiff cannot establish the liability of a defendant absent a showing that the defendant
was personally involved in the activities that form the basis of the alleged unconstitutional
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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.
It is well established that “[t]he Eighth Amendment forbids prison officials from
unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference
toward [his] serious medical needs.” Jones v. Muskegon County, 625 F.3d 935, 941 (6th Cir.
2010) (internal quotations and citations omitted). A claim for deliberate indifference “has both
objective and subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir.
2011). The United States Court of Appeals for the Sixth Circuit has explained:
The objective component mandates a sufficiently serious medical need.
[Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004).] The
subjective component regards prison officials’ state of mind. Id. Deliberate
indifference “entails something more than mere negligence, but can be satisfied
by something less than acts or omissions for the very purpose of causing harm or
with knowledge that harm will result.” Id. at 895–96 (internal quotation marks
and citations omitted). The prison official must “be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 896 (internal quotation marks and citation
omitted).
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Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). Where the risk of serious harm is
obvious, it can be inferred that the defendants had knowledge of the risk. Farmer v. Brennan,
511 U.S. 825, 842 (1994).
The Sixth Circuit has also noted that in the context of deliberate indifference
claims:
[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received
inadequate medical treatment. Where a prisoner alleges only that the medical
care he received was inadequate, federal courts are generally reluctant to second
guess medical judgments. However, it is possible for medical treatment to be so
woefully inadequate as to amount to no treatment at all.
Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). Along similar lines,
“[o]rdinary medical malpractice does not satisfy the subjective component.” Grose v. Corr.
Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir. 2010). Rather, the Sixth Circuit considers the
subjective component to be satisfied where defendants recklessly disregard a substantial risk to a
plaintiff’s health. Parsons v. Caruso, 491 F. App’x 597, 603 (6th Cir. 2012). Furthermore, “a
difference of opinion between [a prisoner] and the prison health care providers and a dispute
over the adequacy of [a prisoner’s] treatment . . . does not amount to an Eighth Amendment
claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).
Plaintiff must satisfy both the objective and subjective components to adequately state a
claim for deliberate indifference. The objective component mandates that a plaintiff demonstrate
a “sufficiently serious” medical need, “which 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.” Santiago v. Ringle, 734 F.3d 505, 590 (6th Cir. 2013).
Accepting Plaintiff’s allegations as true, the Court concludes that he had an inguinal hernia and
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that his case meets the requirements of a “sufficiently serious” medical condition. Barnett, 414
F. App’x at 787–88
In order to demonstrate a deliberate indifference claim, Plaintiff must allege that
Defendants subjectively perceived a substantial risk of serious harm and disregarded that known
risk in his treatment. Blackmore, 390 F.3d at 896. Plaintiff, though, does not allege that
Defendants participated directly in his treatment in any way. Plaintiff lists Defendants
Buchanan and Bradley in the caption of his Complaint but makes no mention of them thereafter.
“Merely listing names in the caption of the complaint and alleging constitutional violations in the
body of the complaint is not enough to sustain recovery under § 1983.” Isreal v. Holbrook, No.
2:17-CV-116, 2017 WL 2129997, at *4 (S.D. Ohio May 16, 2017) (quoting Gilmore v. Corrs.
Corp. of Am., 188, 190 (6th Cir. 2004)). With respect to Defendant Sawyer, Plaintiff does not
allege any conduct in this matter other than allegations that she responded to his written
grievance. (ECF No. 1 at 6.) Although, taking Plaintiff’s factual allegations as true, Defendant
Sawyer did respond to his grievance, even had she not, “[p]rison officials are not liable under §
1983 for denying or failing to act on grievances.” Barnett v. Luttrell, 414 F. App’x. 784, 787
(6th Cir. 2011).
At most, Plaintiff’s Complaint appears to imply that Defendants are liable under § 1983
because of their supervisory positions at NCI and FMC. Under § 1983, however, supervisory
liability is unavailable. Rizzo, 423 U.S. at 371. Plaintiff’s Complaint does not contain any
factual allegation that, if accepted as true, would show Defendants’ personal involvement in the
alleged misconduct. Plaintiff’s pleading, therefore, does not allow the Court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
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678. Accordingly, the Undersigned finds that Plaintiff’s allegations against Defendants in their
individual capacities fail to state a claim for which relief can be granted.1 Fed. R. Civ. P.
12(b)(6).
IV. CONCLUSION
For the reasons explained above, the Undersigned finds that Plaintiff has failed to state a
claim on which relief may be granted against Defendants. Accordingly, the Undersigned
RECOMMENDS that Defendants’ Motion to Dismiss be GRANTED. (ECF No. 15.)
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

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Having found Plaintiff’s Complaint deficient in this respect, it is unnecessary to address
Defendants’ additional arguments regarding failure to plead the components of an Eighth
Amendment claim or Defendants’ asserted defense of qualified immunity.
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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)).

Date: December 4, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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