Pinkerton v. Carroll County Court of Common Pleas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DOUGLAS P. PINKERTON, Pro Se, ) Case No.: 1:19 CV 1475

)

Plaintiff ) JUDGE SOLOMON OLIVER, JR.

)

v. )

)

CARROLL COUNTY COURT OF )

COMMON PLEAS, et al., )

) MEMORANDUM OPINION

Defendants ) AND ORDER

I. INTRODUCTION

Plaintiff pro se Douglas Pinkerton brings this action pursuant to 42 U.S.C. § 1983 against

defendants Carroll County Court of Common Pleas, Carroll County Sheriff’s Office, Judge Michael

Repella II, Prosecuting Attorney Steven Barnett, Public Defender Steven Kandell, former Judge

Dominick Olivito, Sgt. Fred Lohman, Sgt. Jeremy Gopp, Detective Kyle Trisnar, Sheriff Dale

Williams, Jail Commander Jennifer Fergusson. (ECF No. 1).

For the reasons that follow, this action is dismissed.

II. BACKGROUND

According to the Complaint, Plaintiff was a defendant in criminal case number 2018CR6272

in the Carroll County Court of Common Pleas (“Criminal Case”). He alleges that defendants

Kandel, Repella, Barnett, and Olivito were “involved” in pretrials in the Criminal Case ranging in

dates from September 17, 2018 to March 29, 2019. Plaintiff further claims that on January 24,

2019, he “finally misses a court date” and was picked up on a bench warrant, but did not appear

before a judge until March 18, 2019. Plaintiff claims without further factual allegations that these

defendants ignored his constitutional rights and “habitually denied” his right to a jury trial. (ECF

No. 1 at 2-3).

Plaintiff’s next claim pertains to the conduct of defendants Lohman, Gopp, and Trisnar,

whom he alleges violated his constitutional rights after he was picked up on the bench warrant.

Plaintiff alleges that on February 2, 2019, while he was detained in the Carroll County Jail, Lohman

and Gopp used excessive force against him by spraying him with pepper spray while he was lying

on the bed in his cell. He otherwise provides no context for how or why the spraying took place.

He further alleges that he was not provided with medical attention thereafter, but was sprayed down

with water from a hose in the basement garage of the Carroll County Jail by defendants Trisnar and

Gopp, causing the pepper spray to migrate to sensitive parts of his body and resulting in excruciating

pain. (Id. at 4). Thereafter, Plaintiff was transported to Trinity Healthcare of Dover but along the

way, defendants Gopp and Trisnar stopped at a local volunteer fire department where they removed

his clothing in front of a civilian and again sprayed him with a garden hose, after which they

wrapped Plaintiff in a bed sheet. Plaintiff complains that in addition to that humiliation, when they

arrived at Trinity Healthcare, Gopp and Trisnar took Plaintiff into the emergency room through the

public entrance, causing him further humiliation. (Id. at 4-5).

Plaintiff states that he “tried to get justice” regarding the above-described treatment by filing

a grievance with defendants Fergusson and Williams who “demonstrated negligence” towards the

“abuse” Plaintiff experienced, and took no action. (Id. at 5).

Plaintiff claims that the above-described conduct violated his constitutional rights under the

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Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. For relief,

Plaintiff seeks compensatory and punitive damages in the amount of 1.5 Million Dollars to be split

between the Carroll County Court of Common Pleas and the Carroll County Sheriff’s Office.

Plaintiff also seeks monetary damages from the individual defendants in the amount of $111,111.11

each. (Id. at 7).

III. DISCUSSION

A. Standard of Review

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365

(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the court is required to dismiss an

in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can

be granted, lacks an arguable basis in law or fact, or seeks monetary relief against a defendant who

is immune from such relief. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Sistrunk v. City of

Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). While the court must construe the pleading in the

light most favorable to the plaintiff, Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th

Cir. 1998), the court is not required to conjure unpleaded facts or construct claims against a

defendant on behalf of a pro se plaintiff. See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008)

(citation omitted); Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985).

A claim lacks an arguable basis in law or fact when it is premised upon an indisputably

meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

The dismissal standard for Fed. R. Civ. P. 12(b)(6) articulated in Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) also governs dismissal for failure to

state a claim under § 1915(e)(2)(B). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). A cause

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of action fails to state a claim upon which relief may be granted when it lacks plausibility in the

complaint. Twombly, 550 U.S. at 564. A plausible pleading must contain a short and plain statement

of the claim showing that the pleader is entitled to relief on the assumption that all of the allegations

in the complaint are true. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 677-78.

B. Analysis

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. To state a § 1983 claim, Plaintiff

must plausibly allege that a person acting under color of state law deprived him of a right secured

by the United States Constitution. See West v. Atkins, 487 U.S. 42, 48 (1998).

1. Defendants Carroll County Court of Common Pleas and

Carroll County Sheriff’s Office are dismissed

Plaintiff’s claims against the Carroll County Court of Common Pleas and Carroll County

Sheriff’s Department are dismissed. Ohio common pleas courts are an arm of the State of Ohio and,

therefore, immune from suit in federal court pursuant to the Eleventh Amendment to the United

States Constitution. Unknown v. City of Cleveland Police Dep’t, No. 1:19 CV 146, 2019 WL

1877188, at *2 (N.D. Ohio Apr. 26, 2019) (Cuyahoga County Court of Common Pleas is immune

from suit under the Eleventh Amendment) (citing Mumford v. Basinski, 105 F.3d 264, 269-70 (6th

Cir. 1997)). The Carroll County Sheriff’s Office is not a legal entity capable of being sued for

purposes of § 1983. Yahnke v. Nixon, No. 1:10 CV 1470, 2010 WL 3420650, at *1 (N.D. Ohio Aug.

27, 2010) (Medina County Sheriff’s Office is not a legal entity subject to suit under § 1983) (citing

among authority Petty v. Cty. of Franklin, Ohio, 478 F.3d 341 (6th Cir. 2007)).

Accordingly, Plaintiff fails to state a plausible § 1983 claim upon which relief can be granted

against defendants Carroll County Court of Common Pleas and Carroll County Sheriff’s Office, and

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those defendants are dismissed from this action pursuant to § 1915(e)(2)(B).

2. Defendants Repella, Olivito, Barnett, and Kandell are dismissed

Plaintiff claims that Judges Repella and Olivito, Prosecuting Attorney Barnett, and Public

Defender Kandell were “involved” in the Criminal Case and violated his constitutional rights with

respect to the multiple pretrials and the alleged denial of his right to a jury trial. As an initial matter,

these defendants are not susceptible to suit under § 1983.

Plaintiff describes Judge Repella and former Judge Olivito as “involved” in the Criminal

Case. Absolute judicial immunity attaches where a judicial officer acts in his or her official judicial

capacity, that is, a function normally performed by a judge. See Stump v. Sparkman, 435 U.S. 349,

362 (1978). There are no factual allegations regarding Judges Repella or Olivito that plausibly

suggest either of them lacked jurisdiction or acted outside of their judicial function in the Criminal

Case. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (a judge is not immune from liability for

nonjudicial actions or for actions taken in the complete absence of all jurisdiction) (citations

omitted). Therefore, Judges Repella and Olivito are immune from suit and are dismissed from this

action pursuant to § 1915(e)(2)(B).

Also entitled to immunity is Carroll County prosecutor Barnett. Prosecutors are immune

from a civil suit for damages under § 1983 for conduct associated with the judicial phase of the

criminal process, including initiation of a prosecution and presentation of the case at trial. Imbler

v. Pachtman, 424 U.S. 409, 430-31 (1976). There are no allegations in the Complaint from which

this court may infer that Barnett acted outside his role as a prosecutor in connection with the

Criminal Case. Accordingly, Barnett is dismissed from this action pursuant to § 1915(e)(2)(B).

With respect to Carroll County public defender Kendall, “a public defender does not act

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under color of state law when performing a lawyer’s traditional functions as counsel to a defendant

in a criminal proceeding.” Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981). Here, there are no

allegations in the Complaint that suggest Plaintiff’s claims against Kendall relate to conduct outside

of Kendall’s role as a public defender in the Criminal Case. Accordingly, Plaintiff fails to state a

plausible § 1983 claim against Kendall, and he is dismissed from this action pursuant to §

1915(e)(2)(B).

Even if Repella, Olivito, Barnett, and Kandell were subject to suit under § 1983, Plaintiff’s

claims against them would be dismissed. Plaintiff does not alleged any specific conduct on the part

of each of the defendants that allegedly violated his constitutional rights with respect to the Criminal

Case. While detailed factual allegations are not required to state a plausible claim, Plaintiff still must

satisfy the basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). Hill, 630 F. 2d at

470-71. Plaintiff’s conclusory assertions that defendants Repella, Olivito, Barnett, and Kandell

violated his constitutional rights with respect to the Criminal Case are insufficient to state a § 1983

claim against these defendants. See Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir.

1996) (a court is not required to accept summary allegations or unwarranted conclusions in

determining whether a complaint states a claim for relief). In the absence of specific allegations of

unconstitutional conduct on the part of these defendants, Plaintiff fails to allege a plausible § 1983

claim for relief against Repella, Olivito, Barnett, and Kandell, and they are dismissed pursuant to

§ 1915(e)(2)(B) for this additional reason.

3. Plaintiff’s excessive force claim is dismissed

At the time of the events at issue here, Plaintiff was a pretrial detainee. Therefore, his

excessive force claim is governed by the Fourteenth Amendment, not the Eighth Amendment. “The

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Supreme Court has recently clarified ... that when assessing pretrial detainees’ excessive force claims

we must inquire into whether the plaintiff shows ‘that the force purposely or knowingly used against

him was objectively unreasonable.’” Coley v. Lucas Cty., Ohio, 799 F.3d 530, 538 (6th Cir. 2015)

(quoting Kingsley v. Hendrickson, ––– U.S. ––––, 135 S. Ct. 2466, 2473 (2015)). An excessive

force claim analyzed under the Fourteenth Amendment’s standard of objective reasonableness “turns

on the ‘facts and circumstances of each particular case.’” Kingsley, 135 S. Ct. at 2466 (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). “[T]he question is whether the officers’ actions are

objectively reasonable in light of the facts and circumstances confronting them, without regard to

their underlying intent or motivation.” Graham, 490 U.S. at 397. The objective reasonableness

standard requires consideration of:

the relationship between the need for the use of force and the amount of force used; the

extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount

of force; the severity of the security problem at issue; the threat reasonably perceived by the

officer; and whether the plaintiff was actively resisting.

Kingsley, 135 S. Ct. at 2473.

In assessing an excessive force claim by a pretrial detainee for objective reasonableness, “[a]

court also considers the need for jail officials to adopt and execute ‘policies and practices’ that in

their ‘judgment’ are necessary ‘to preserve internal order and security.’” Labadie v. Mitchell, No.

17-1290, 2018 WL 4488268, at *2 (6th Cir. May 11, 2018) (quoting Kingsley, 135 S. Ct. at 2473).

Here, Plaintiff alleges Gopp and Lohman pepper sprayed him while he was lying on his bed

in his cell behind a locked door. (ECF No. 1 at 4). This single statement constitutes the entirety of

Plaintiff’s excessive force claim concerning the conduct of Lohman and Gopp.

Plaintiff does not allege what effect, if any, the pepper spray had on him when it was applied

by Gopp and Lohman. Under the Kingsley standard regarding the reasonableness of the use of force

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on a pretrial detainee, the extent of a pretrial detainee’s injury is a consideration and the force applied

must be more than de minimis. See Brown v. Muskegon Cty. Jail, No. 1:19-CV-235, 2019 WL

2482359, at *4 (W.D. Mich. June 14, 2019) (“All of the considerations mentioned in Kingsley

assume that some meaningful level of force was exerted on the plaintiff. ... The Constitution is not

concerned with every physical contact between an official and a detainee, no matter how minor.”)

(citing Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979) (“There is, of course, a de minimis level of

imposition with which the Constitution is not concerned.”)); see also Andrew v. St. Tammany Par.

Prison, No. CV 15-2105, 2016 WL 447680, at *11 (E.D. La. Jan. 15, 2016), (recommending

dismissal of pretrial detainee’s excessive force claim pursuant to § 1915 where defendant’s brief

conduct of pulling pretrial detainee up by the handcuffs lasted less than a minute and resulted in no

injuries, suggesting the force applied was de minimis), report and recommendation adopted sub nom.

Don M. Andrew, Jr. v. St. Tammany Parish Prison, et al., No. CV 15-2105, 2016 WL 430455 (E.D.

La. Feb. 4, 2016).

Nor does Plaintiff claim that he was pepper sprayed without reason or allege any other facts

from which this court may infer that, if true, Plaintiff states a plausible claim that Lohman and Gopp

acted unreasonably. See Scott v. Martin, No. 3:17-CV-00868, 2017 WL 2362523, at *2 (M.D. Tenn.

May 31, 2017) (Plaintiff’s claim that officers entered his cell and pepper sprayed and assaulted him

“for no righteous reason” was sufficient to state a plausible claim on initial review for the use of

excessive force against a pretrial detainee under the Kingsley standard.); Graves v. Mays, No.

18-1200-JDT-CGC, 2019 WL 5090490, at *4 (W.D. Tenn. Oct. 10, 2019) (Plaintiff’s claim that he

was maced a second time simply because of a comment he made to an officer while he was locked

behind a cell door and posed no threat to others states a plausible excessive force claim under the

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Fourteenth Amendment).

It is Plaintiff’s obligation to allege sufficient facts that state a plausible claim for relief.

While the court is required to liberally construe the Complaint, the court is not required to conjure

factual allegations on Plaintiff’s behalf. See Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir.

2011) (“[A] court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading.’”

(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)). Here,

Plaintiff alleges no facts which, if true, states a plausible claim that he was subjected to excessive

force by Gopp and Lohman in violation of the Fourteenth Amendment. Accordingly, that claim is

dismissed pursuant to § 1915(e)(2)(B).

4. Plaintiff’s claim that he was denied medical care is dismissed

The Eighth Amendment protects convicted prisoners against the imposition of cruel and

unusual punishment. The denial of medical care for a serious medical need may constitute cruel and

unusual punishment under the Eighth Amendment. In this case, Plaintiff is a pretrial detainee. As

a pretrial detainee, Plaintiff’s rights under the Fourteenth Amendment regarding medical care are

analogous to those provided convicted prisoners under the Eighth Amendment. See Winkler v.

Madison Cty., 893 F.3d 877, 890 (6th Cir. 2018) (citing Phillips v. Roane Cty., 534 F.3d 531, 539

(6th Cir. 2008)).

Similar to the Eighth Amendment, the analysis of a Fourteenth Amendment claim concerning

deliberate indifference to a serious medical need includes an objective and subjective component.

To satisfy the objective component, the medical need must be sufficiently serious. To satisfy the

subjective component, “the detainee must demonstrate that the defendant possessed a sufficiently

culpable state of mind in denying medical care.” Id. at 891 (internal quotation marks and citation

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omitted). “A defendant has a sufficiently culpable state of mind if he ‘knows of and disregards an

excessive risk to inmate health or safety.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)).

Plaintiff alleges that after he was pepper sprayed, defendants Gopp and Lohman “skipped”

providing him with medical attention that was available at the jail and did not allow him to properly

cleanse himself of pepper spray. As noted above, Plaintiff does not allege what effect, if any, the

pepper spray had on him, thus failing to assert facts that plausibly allege a serious medical need.

Plaintiff’s also fails to plausibly allege the subjective component of a deliberate indifference

claim. Plaintiff claims that in the basement garage of the Carroll County Jail, before he was

transported to the hospital emergency room, defendants Gopp and Trisnar sprayed him down with

a garden hose (which caused the pepper spray to migrate to sensitive areas resulting in pain) then

stopped on the way to the emergency room at a local fire station where his clothing was removed and

he was again sprayed down with water and wrapped in a bed sheet. Plaintiff alleges that when they

arrived at the hospital emergency, Gopp and Trisnar humiliated him by taking him through the public

entrance wrapped in a bed sheet.1

Taking Plaintiff’s allegations as true, Gopp and Trisnar did not disregard an excessive risk

to Plaintiff or deny him medical care with respect to the pepper spray – they attempted to remove

1 Plaintiff’s claims that he was humiliated when his clothes were removed at the fire station in front

of a civilian and he was sprayed with water and wrapped in a bed sheet, and further humiliated

when he was taken by Gopp and Trisnar through the public entrance of the emergency room.

Assuming Plaintiff’s allegations to be true, such humiliation does not constitute cruel and unusual

punishment in violation of the Constitution. See Jackson v. Madery, 158 F. App’x 656, 661-62

(6th Cir. 2005) (concluding that a brief and isolated incident during which a correctional officer

rubbed and grabbed an inmate’s buttocks in a degrading and humiliating manner during a

“shakedown” did not amount to cruel and unusual punishment under the Eighth Amendment),

abrogated on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018), reh’g denied (Apr.

19, 2018).

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the pepper spray residue with water and transported him to the hospital emergency room. To the

extent that Gopp’s and Trisnar’s efforts were not optimal, that is insufficient to support a deliberate

indifference claim. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (mere negligence does not

constitute deliberate indifference).

Accordingly, Plaintiff fails to allege a plausible § 1983 deliberate indifference claim, and that

claim against Gopp and Trisnar is dismissed.

5. Plaintiff’s claims against defendants Fergusson and Williams are dismissed

Plaintiff states that he “tried to get justice” by filing a grievance with defendant Fergusson,

but no action was taken by Fergusson. He then brought his complaint to defendant Williams, who

“also demonstrated negligence . . . towards the abuse” that Plaintiff experienced.

Plaintiff fails to allege a plausible § 1983 claim regarding the alleged conduct of defendants

Fergusson and Williams. Even assuming the truth of his allegations, Plaintiff does not have a

constitutional right to an effective grievance procedure. See Miller v. Haines, 156 F.3d 1231 (Table)

(6th Cir. 1998) (“Prison inmates do not have a constitutionally protected right to a grievance

procedure.”) (citations omitted). Moreover, prison officials whose only roles “involve their denial

of administrative grievances and their failure to remedy the alleged [unconstitutional] behavior”

cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Here, Plaintiff

has alleged no other conduct on the part of Fergusson or Williams2 outside of their role with respect

to his grievance.

2 To the extent that Plaintiff is alleging that Fergusson or Williams are responsible for the conduct of

Lohman, Gopp, or Trisnar, they cannot be liable under § 1983 under a theory of respondeat

superior even if the court had determined that Plaintiff has stated a plausible § 1983 claim as to

Lohman, Gopp, or Trisnar. See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citations

omitted).

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Accordingly, Plaintiff’s § 1983 claim against defendants Fergusson and Williams are

dismissed pursuant to § 1915(e)(2)(B).

6. Plaintiff’s state law claims are dismissed without prejudice

Having dismissed all of Plaintiff’s federal claims, and there being no other basis for subject

matter jurisdiction apparent on the face of the Complaint, the court declines to exercise supplemental

jurisdiction over any state law claims Plaintiff may be asserting. See 28 U.S.C. § 1367(c)(3); United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724-26 (1966); Brooks v. Rothe, 577 F.3d 701, 709

(6th Cir. 2009) (“Under 28 U.S.C. § 1367(c)(3), the district court may decline to exercise

supplemental jurisdiction over a claim if it has dismissed all claims over which it has original

jurisdiction. If the federal claims are dismissed before trial, the state claims generally should be

dismissed as well.”) (internal quotation marks and citation omitted).

IV. CONCLUSION

For all of the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B).

The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision

could not be taken in good faith.3

IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

November 26, 2019

3 28 U.S.C. § 1915(a)(3) provides:

An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good

faith.

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