Heid et al v. Hooks et al
Filing
27
REPORT AND RECOMMENDATIONS re 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jefrey Howard, Mark Hooks. It is RECOMMENDED that Defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART. Objections to R&R due by 11/23/2018. Signed by Magistrate Judge Chelsey M. Vascura on 11/8/2018. (daf)(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
RAY SCOTT HEID, et al.,
Plaintiffs,
Civil Action 2:17-cv-650
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura
vs.
MARK HOOKS, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiffs, Ray Scott Heid and James E. Damron (“Plaintiffs”), state prison inmates who
are proceeding without the assistance of counsel, bring this action under 42 U.S.C. § 1983
against Defendants, Mark Hooks, and Jeffrey Howard (“Defendants”), employees of Ross
Correctional Institution (“RCI”), in their individual and official capacities. (ECF No. 1.) This
matter is before the undersigned for consideration of Defendants’ Motion to Dismiss (ECF No.
19) and Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss (ECF No. 25).
For the reasons that follow, the undersigned RECOMMENDS that Defendants’ Motion to
Dismiss be GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
This Court previously performed an initial screen of the Complaint and dismissed
Plaintiffs’ equal protection claim under the Fourteenth Amendment and class-action claim under
the Eighth Amendment. (ECF Nos. 10, 12.) Only Plaintiffs’ individual claims of deliberate
indifference to a serious risk of harm under the Eighth Amendment remain. (Id.)
For these individual claims, Plaintiffs assert that Defendants were deliberately indifferent
to a substantial risk of physical harm related to their use of the prison phones. According to
Plaintiffs, a group of “black supremacist” inmates control five of the six phones in the cell block
and limit white inmates’ use to the remaining phone. Plaintiffs allege that this phone control
results in violence and threats of violence and further allege that despite having notice of the
violence relating to telephone access, Defendants have not taken meaningful steps to rectify the
situation. (ECF No. 1-1.)
In their Motion to Dismiss, Defendants first assert that the Eleventh Amendment bars
Plaintiffs from suing Defendants in their official capacities. Defendants next argue that
Plaintiffs’ individual capacity claims should be dismissed because Defendants are entitled to
qualified immunity. Defendants further maintain that they have not acted with deliberate
indifference to the risk of harm, but that they have instead offered solutions to Plaintiffs, as
evidenced by the exhibits Plaintiff attaches to his Complaint. (ECF No. 1-1, PAGEID #28-41,
61-64, 69, 77-78). Finally, Defendants contend that Plaintiffs are not entitled to a preliminary
injunction.
Plaintiffs oppose Defendants’ Motion to Dismiss, contending that they are permitted to
sue Defendants in their official capacity because they are seeking injunctive relief. Plaintiffs
also contest Defendants’ assertions that they are entitled to qualified immunity and that they
offered reasonable solutions to the risk of harm resulting from tensions over phone use.
II.
STANDARD FOR MOTION TO DISMISS
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 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
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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.’” Iqbal, 556 U.S., at 678 (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.’” Iqbal, 556 U.S., at 678 (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.” Iqbal, 556
U.S., at 678 (quoting Twombly, 550 U.S. at 570). “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., 374 F. App’x 612, 614 (6th Cir. 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.
DISCUSSION
The undersigned first considers Defendants’ contention that the Eleventh Amendment
bars Plaintiffs from suing Defendants in their official capacities before turning to Defendants’
arguments in favor of dismissal of Plaintiffs’ claims against them in their individual capacities.
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A.
Official Capacity Claims
The undersigned concludes that, to the extent Plaintiffs seek monetary damages against
Defendants in their official capacities, their claims are barred by the Eleventh Amendment. 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)). Moreover, “an
official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.
It is not a suit against the official personally, for the real party in interest is the entity.” Kentucky
v. Graham, 473 U.S. 159, 166 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)).
Thus, it is immaterial that Plaintiffs named individual employees of RCI rather than the state of
Ohio; Ohio is the real party in interest in the official capacity claim. 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).
Plaintiffs’ claim for injunctive relief against Defendants in their official capacities,
however, may proceed. “The exception set forth in Ex Parte Young allows plaintiffs to bring
claims for prospective relief against state officials sued in their official capacity to prevent future
federal constitutional or statutory violations.” Boler v. Earley, 865 F.3d 391, 412 (6th Cir.
2017). The Ex Parte Young doctrine “rests on the premise . . . that when a federal court
commands a state official to do nothing more than refrain from violating federal law, he is not
the State for sovereign-immunity purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
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247, 255 (2011). “In determining whether the doctrine of Ex Parte Young avoids an Eleventh
Amendment Bar to suit, a court need only conduct a “straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.” Verizon Md., Inc. v. Public Serv. Com’n of Md., 535 U.S. 635, 645 (2002)
(quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)). Here, Plaintiffs seek
injunctive relief to govern Defendants’ future conduct. Specifically, Plaintiffs ask for an
injunction against “any other and/or further Constitutional violations as set forth [in the
Complaint]” and additionally ask for one of the following forms of relief: (1) that Defendants
place a phone in every cell; (2) that Defendants designate “racially balanced phones;” (3) that
Defendants limit inmates to one completed call per day; or (4) any other action that will cure the
harm and permit equal accessibility to institutional phones. (ECF No. 1–1.) Because Plaintiffs
seek relief that is properly characterized as prospective, their claim for injunctive relief against
Defendants in their official capacities may proceed.
Accordingly, it is RECOMMENDED that Plaintiffs’ claims for monetary damages
against Defendants in their official capacities be DISMISSED, but that Defendants’ Motion be
denied with respect to Plaintiffs’ claims for injunctive relief against Defendants in their official
capacities.
B.
Individual Capacity Claims
The undersigned finds Defendants’ Motion to Dismiss Plaintiffs’ individual capacity
claims to be without merit. As an initial matter, Defendants are not entitled to qualified
immunity at this juncture because Plaintiffs have sufficiently alleged that Defendants violated
their clearly established Eighth Amendment rights. “Qualified immunity shields government
officials from civil damages liability unless the official violated a statutory or constitutional right
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that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566
U.S. 658, 664 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Under this doctrine,
“‘government officials performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Moldowan v. City of
Warren, 578 F.3d 351, 374 (6th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “[Q]ualified immunity applies irrespective of whether the official’s error was a mistake
of law or a mistake of fact, or a mistake based on mixed questions of law and fact.” Hall v.
Sweet, 666 F. App’x 469, 477-78 (6th Cir. 2016) (citing Pearson v. Callahan 555 U.S. 223, 231
(2009)). In determining whether an official is entitled to qualified immunity, “we ask two
questions: ‘First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff
shown that a constitutional violation has occurred? Second, was the right clearly established at
the time of the violation?’” Mitchell v. Schlabach, 864 F.3d 416, 420 (6th Cir. 2017) (quoting
Miller v. Sanilac County, 606 F.3d 240, 247 (6th Cir. 2010)). For the reasons set forth in the
undersigned’s Report and Recommendation (ECF No. 10) and the Court’s Opinion & Order
adopting the Report and Recommendation (ECF No. 12), Plaintiffs have adequately pled that
Defendants violated their clearly established Eighth Amendment right to protection from
violence at the hands of other inmates.
Moreover, Defendants’ arguments for dismissal of Plaintiffs’ individual capacity claims
improperly require this to Court accept as true their responses in the grievances that Plaintiffs
attached to their Complaint. Pursuant to Federal Rule of Civil Procedure 10(c), “a statement in a
pleading may be adopted by reference elsewhere in the same pleading or motion.” Fed. R. Civ.
P. 10(c) (emphasis added). Further, a “copy of a written instrument that is an exhibit to a
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pleading is a part of the pleading for all purposes.” Id. Nevertheless, “it is generally not
permissible to accept as true the defendants’ responses to a pro se prisoner’s grievances that are
attached to his complaint, where the prisoner disputes the validity of the defendants’ statements.”
Turner v. Welkal, No. 3:12-cv-0915, 2014 WL 347815, at *18 (M.D. Tenn. Jan. 31, 2014); Jones
v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008) (“Rule 10(c) does not require a plaintiff
to adopt every word within the exhibits as true for purposes of pleading simply because the
documents were attached to the complaint to support an alleged fact.”). Here, Plaintiffs attached
the at-issue grievances to their Complaint to demonstrate that Defendants had been made aware
of the telephone access tensions and the resulting risk of violence. Nothing in their Complaint
reflects that Plaintiffs intended to accept as true or adopt Defendants’ responses to those
grievances. Cf. Jones, 521 F.3d at 561 (holding that attachment of a transcript of defendant’s
unilateral statements to complaint did not mean that the plaintiff adopted those statements but
instead shows that the defendant made such statements); Franklin v. Dudley, No. CIV S-072259, 2009 WL 3073930, at *3 (E.D. Cal. Sept. 22, 2009) (statements defendant made in
grievance were not adopted into complaint where plaintiff attached grievance to complaint to
prove exhaustion of administrative remedies, and nothing in the complaint suggested that the
plaintiff was adopting as true the defendant’s statements). It is therefore RECOMMENDED
that the Court decline rely upon Defendants’ statements in the grievances Plaintiffs attached to
their Complaint to disturb its earlier holding that Plaintiff had sufficiently alleged an Eighth
Amendment claim.
IV.
DISPOSITION
For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion to Dismiss
(ECF No. 19) be GRANTED IN PART and DENIED IN PART as set forth above.
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V.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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