Morris v. Bethard et al

Filing 3

ORDER and REPORT AND RECOMMENDATION #2 Complaint filed by Clifford D. Morris and #1 MOTION for Leave to Proceed in forma pauperis. Having performed the initial screen, for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS this action pursuant to 1915(e)(2) for failure to state a claim on which relief may be granted. This matter is also before the Court for consideration of Plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. 1915(a)(1) and (2), which is GRANTED. Objections to R&R due by 1/20/2021. Signed by Magistrate Judge Chelsey M. Vascura on 01/06/2021. (mdr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on 1/7/2021 (kk2)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CLIFFORD D. MORRIS,
Plaintiff,
Civil Action 2:20-cv-6524
Judge Sarah D. Morrison
Magistrate Judge Chelsey M. Vascura

v.

FAYETTE CO. JUDGE
STEVEN BETHARD, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Clifford D. Morris, an Ohio inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983, asserting official-capacity claims
against Matthew T. Weidman, the Fayette County Jail Administrator; Darci Moore, an employee
with the Fayette County Health Department; and Steven Bethard, a Fayette County Judge
(collectively “Defendants”), alleging that the Fayette County Jail failed to take sufficient
precautions to prevent him from being exposed to the COVID-19 virus. This matter is before the
Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to
identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion
of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2);
see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the
initial screen, for the reasons that follow, the undersigned RECOMMENDS that the Court

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DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be
granted.
This matter is also before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF
No. 1.) Plaintiff is required to pay the full amount of the Court’s $402 filing fee. 28 U.S.C. §
1915(b)(1). Plaintiff’s certified trust fund statement reveals that he cannot pay the filing fee
because he currently possesses no money in his prison account.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts at
Fayette County Jail is DIRECTED to submit to the Clerk of the United States District Court for
the Southern District of Ohio as an initial partial payment, 20% of the greater of either the
average monthly deposits to the inmate trust account or the average monthly balance in the
inmate trust account, for the six-months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the
inmate’s preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00 until the full fee of $402.00 has been paid to the Clerk of this Court. 28
U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks
should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.

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It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of
fees or costs and that judicial officers who render services in this action shall do so as if the costs
had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff
and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order
to the Court’s financial office in Columbus.
I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that—
*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted. See

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Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).
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). 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)). Further, 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) of the Federal Rules of Civil Procedure, “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. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se complaints “to less stringent standards than
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formal pleadings drafted by lawyers.” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972).
II.
Plaintiff’s Complaint lacks clarity. Construing it liberally, Plaintiff appears to allege that
he was exposed to other inmates who were positive for the COVID-19 virus in November 2020.
Plaintiff alleges that because he was exposed, he requested cough medicine to prevent him from
contracting the virus, but his request was denied. Plaintiff also requested to be moved to another
cell. His request was granted within forty-five minutes, but he alleges that two other inmates in
this new cell tested positive for the COVID-19 virus. Plaintiff alleges that he was moved again,
but that the deputy did not “log” this move. Finally, he alleges the only preventative treatment
he has received is vitamin supplements. In terms of relief, Plaintiff seeks a Court order requiring
Fayette County Jail to be properly prepared to handle issues such as the COVID-19 pandemic.
The undersigned construes Plaintiff’s Complaint as seeking to advance both a conditionsof-confinement claim and a medical indifference claim under the Eight Amendment.
As a threshold matter, although Plaintiff has not designated the capacity in which he is
suing Defendants, he identifies each Defendant together with the Franklin County entity with
whom they work, none of his allegations pertain to specific actions any particular Defendant
took, and he does not seek monetary damages from any individual Defendant. Based upon the
foregoing, the undersigned construes Plaintiff’s Complaint as advancing official-capacity claims

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only.1 See Moore v. City of Harriman, 272 F.3d 769, 775 (6th Cir. 2001) (en banc), cert. denied,
536 U.S. 922 (2002) (holding that Ҥ 1983 plaintiffs must clearly notify defendants of the
potential for individual liability” and “clarify[ing] that reviewing the course of proceedings is the
most appropriate way to determine whether such notice has been given”); Thomas v. NoderLove, 621 F. App’x 825, 831 (6th Cir. 2015) (applying “course of proceedings” test to determine
that complaint named the defendant in his official capacity only); United States ex rel Diop v.
Wayne Cty. Cmty. College Dist., 242 F.Supp.2d 497, 517 (E.D. Mich. 2003) (“Absent a clear
notification that defendants are being sued in their individual capacities, courts must assume that
they are being sued in their official capacities, only.”).
“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government
official for actions he takes under color of state law,’ individuals sued in their official capacities
stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir.
2003) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Thus, “[a] suit against an
individual in his official capacity is the equivalent of a suit against the governmental entity.”
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Applied here, Plaintiff’s officialcapacity claims are advanced against Fayette County.
“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
1

Even if Plaintiff intended to advance individual-capacity claims, his Complaint still falls short because he has failed
allege facts upon which the Court could rely to conclude that any specific individual acted or failed to act with
deliberate indifference as required to demonstrate the subjective component of Eighth-Amendment claims. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (holding that claims under the Eighth Amendment require the plaintiff
“to prove both the subjective and objective elements necessary to prove an Eighth Amendment”); Berksire v.
Beauvais, 928 F.3d 520, 535 (6th Cir. 2019) (“To satisfy the subjective component [of an Eight-Amendment claim],
an inmate must show that prison officials had a sufficiently culpable state of mind. . . . [T]hat state of mind is one
of deliberate indifference to inmate health or safety.” (internal quotation marks and citations omitted)). Moreover,
Plaintiff has failed to allege “personal involvement” by any particular Defendant, which is required to state a § 1983
individual-capacity claim. See Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted); Everson v.
Leis, 556 F.3d 484, 495 (6th Cir. 2009) (to hold a supervisor liable under § 1983, a plaintiff plaintiff “must show
that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct”)
(internal quotation omitted).
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employees or agents. Instead, it is when execution of a government’s policy or custom . . .
inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978); Nichols v. Wayne Cty. Mich., 822 F. App’x 445, 448
(6th Cir. 2020) (“To state a municipal-liability claim under § 1983, the plaintiff must allege the
deprivation (1) of a right secured by the Constitution or laws of the United States, (2) that was
directly caused by a municipal policy or custom.” (citing Hardrick v. City of Detroit, 876 F.3d
238, 243 (6th Cir. 2017)). A plaintiff may prove an unconstitutional “policy” or “custom” by
demonstrating one of the following: “(1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom of
tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478
(6th Cir. 2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).
Here, Plaintiff’s has not alleged any facts upon which the Court could rely to conclude
that an official policy or custom of Fayette County resulted in the violation of his constitutional
rights. Consequently, it is RECOMMENDED that his Complaint be DISMISSED pursuant to
§ 1915(e)(2). See Monell, 436 U.S. at 708; Moore v. CCNO S. Health Partners, No. 3:20-cv1278, 2020 WL 6729033, at *2 (N.D. Ohio Nov. 16, 2020) (dismissing inmate’s eighthamendment Monell claim premised upon COVID-19 exposure against municipal defendant
because plaintiff failed to identify and attack a policy of municipal defendant).
III.
For the reasons set forth above, the undersigned RECOMMENDS that the Court
DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be
granted. In addition, Plaintiff’s motion to proceed in forma pauperis is GRANTED.
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The Clerk is DIRECTED to send a copy of this order to the Ohio Attorney General’s
Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
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).
IT IS SO ORDERED.

/s/ Chelsey M. Vascura __________
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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