Lathan v. Rutter

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAREK LATHAN, et al., ) Case No. 3:21 CV 42

)

Plaintiffs ) JUDGE SOLOMON OLIVER, JR.

)

v. )

)

ALEX RUTTER, et al., )

) MEMORANDUM OPINION

Defendants ) AND ORDER

Pro se Plaintiffs Darek Lathan, Bryan Mays, Cecil Wilson, Kelley Lee, Grant Black, Richard

Stewart, Anthony Robinson, Tyrone Hoskins, Jayson Hill, Larry Singleton, and “50 Unknown

Federal Detainees,” filed this action against Alex Rutter, U.S. Marshal; Dennis Sullivan, “being

director of northwest Ohio Correctional center”; John Tharp, “board member of the 5 counties which

house defendants at Northwest Ohio Correctional Center”; and “4 unknown county board members”

in the Lucas County Court of Common Pleas. (Doc. No. 1-1).

For the following reasons, this action is dismissed.

I. BACKGROUND

Plaintiffs state that they are federal detainees at the Corrections Center of Northwest Ohio

(“CCNO”) in Stryker, Ohio. Plaintiffs’ Complaint concerns the conditions of confinement at CCNO,

alleging the following: Defendants’ purported failure to provide “adequate shoes, hats, and

jackets...during the winter season to help avoid detainees/defendants from contracting flu, colds, and

other illnesses,” including COVID-19; Defendants’ alleged failure to address the purported

inadequate conditions of confinement relating to COVID-19; and Defendants’ alleged failure to

adequately address Plaintiff Lathan’s “deteriorating shoulder” that requires medical treatment. (Doc.

No. 1-1 at 3-7.) Plaintiffs also appear to assert various tort claims. (Id. at 7.)

In their Complaint, Plaintiffs allege that “Director Sullivan” failed to provide adequate

shoes, hats, and jackets “to combat the winter elements” and this failure has contributed to Plaintiffs

“contracting flu, colds, and other illnesses,” including COVID-19. (Doc. No. 1-1 at 3-4.) Plaintiffs

also allege that “Marshal Alex[Rutter], Dennis Sullivan, and “board member John Tharp ...

negligently ignored” their plea for these items and their negligence resulted in negligent infliction

of emotional distress. (Id. at 4.) The Complaint further states that there is no adequate quarantine,

which has caused the CCNO to file its own lawsuit, and “federal detainees ... are protected by the

5th Amendment to the U.S. Constitution, which clearly states that federal detainees cannot be

subjected to places of confinement [that] will cause them serious illnesses or death.” (Id. at 5.)

Plaintiffs also allege that Defendants’ failure to provide adequate shoes, hats, and jackets “equates

to “malicious [malice], wanton disregard of the safety of [the] detainees” and is “actional tort.” (Id.

at 6.) Plaintiffs assert in their final claim that Defendants’ actions “[a]mount to actual malice, actus

reus, imbecility, tortious behavior, wilful conduct, wanton conduct, natural and probable

consequences, [and] frolic of their own.” (Id. at 7.)

Additionally, Plaintiff Lathan alleges that he has informed “director Sullivan” of his

deteriorating shoulder that requires a cortisone shot and “the needed removal of a large irregular

growth on the back of his head.” (Id.) Plaintiff Lathan asserts that “these pleas of emergency medical

treatment has also been ignored for multiple years by Defendants.” (Id.)

Plaintiffs seek monetary damages of $100,000, punitive damages of $100,000, and a “grant

to purchase shoes, hats, and jacket” or an order “compelling [the] holding facility to allow detainees

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to purchase [these garments]” or an order “allowing said garments to be dropped off for detainees.”

Plaintiffs also seek an order compelling the U.S. Marshal to transport detainees to a treatment facility

or permitting medical furlough. (Doc. No. 1-1 at 7-8.)

Defendant Rutter removed this action to Federal Court (Doc. No. 1) and filed a Motion to

Dismiss (Doc. No. 12). Defendants Sullivan and Tharp also filed a Motion to Dismiss (Doc. No.

11.) Plaintiffs filed a “Motion to Dismiss Defendant Motion to Dismiss” (Doc. No. 13), which this

Court liberally construes as Plaintiffs’ opposition to Defendants’ Motions.

II. STANDARD OF REVIEW

Defendants filed Motions to Dismiss for failure to state a claim under Fed. R. Civ. P 12(b)(6)

and for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). (See Doc. Nos. 11 and 12.)

To survive a Fed. R. Civ. P.12(b)(6) motion to dismiss, a plaintiff’s complaint must allege

enough facts to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)); Ass’n of Cleveland Fire Fighters v. City

of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) . Fed. R. Civ. P. 8(a)(2) requires only that a

pleading contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” However, “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.

Ct. 2932, 92 L. Ed. 2d 209 (1986)). A complaint requires “further factual enhancement,” that

“state[s] a claim to relief that is plausible on its face.” Id. at 557, 570. A claim has facial plausibility

when there is enough factual content present to allow “the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

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1937, 173 L. Ed. 2d 868 (2009). When a claim lacks “plausibility in th[e] complaint,” that cause of

action fails to state a claim upon which relief can be granted. Twombly, 550 U.S. at 564.

When a party files a motion to dismiss for lack of subject matter jurisdiction under Fed. R.

Civ. P.12(b)(1) in conjunction with other Rule 12 motions, however, the Court generally considers

the Rule 12(b)(1) motion first. See Sinochem Int'l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.

422, 430-31, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007) (“[A] federal court generally may not rule on

the merits of a case without first determining that it has jurisdiction[.]”). “It is the plaintiff's burden

. . . to prove that this court has jurisdiction over [the plaintiff's] claim.” Kiser v. Reitz, 765 F.3d 601,

607 (6th Cir. 2014).

In considering the pending motions, the Court is mindful that pro se pleadings are liberally

construed and held to less stringent standards than formal pleadings drafted by lawyers. Boag v.

MacDougall, 454 U.S. 364, 365 (1982); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L.

Ed. 2d 652 (1972); see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (pro se complaints are

entitled to liberal construction) (citations omitted). This lenient treatment, however, has limits. The

Court is not required to conjure unpleaded facts or construct claims on Plaintiff’s behalf. 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).

III. LAW AND ANALYSIS

Plaintiffs’ specific claims are not entirely clear. Liberally construing Plaintiffs’ Complaint,

however, it appears that Plaintiffs allege Defendants violated their constitutional rights when

Defendants (1) failed to provide adequate clothing items, which placed Plaintiffs at risk of

contracting illnesses, including COVID-19; (2) provided inadequate COVID-19 protocols; and (3)

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ignored Plaintiff Lathan’s pleas for medical treatment. Plaintiffs also appear to allege Defendants

committed “tortious behavior.” As Plaintiffs assert claims against “Marshal Alex[Rutter], being

superior marshal of federal detainees,” “Dennis Sullivan, being director of [CCNO],” and “John

Tharp, being a board member,” the Court construes Plaintiffs’ claims against Defendants in their

official capacities. (See Doc. No. 1-1 at 2-3.)

Upon review, the Court agrees with the Defendants that Plaintiffs’ Complaint warrants

dismissal.

A. Proper Parties

As an initial matter, the Court will recognize only Darek Lathan as the proper Plaintiff in this

action, and any claims concerning the remaining purported plaintiffs will not be considered.

A party may plead and conduct his or her case in person or through a licensed attorney. See

28 U.S.C. § 1654; Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991). A pro

se litigant, however, may not represent anyone other than himself or herself. See e.g. Gonzales v.

Wyatt, 157 F.3d 1016, 1021 (5th Cir.1998) (“[I]n federal court a party can represent himself or be

represented by an attorney, but [he] cannot be represented by a nonlawyer”); Johns v. County of San

Diego, 114 F.3d 874, 876 (9th Cir.1997) (“While a non-attorney may appear pro se on his own

behalf, he has no authority to appear as an attorney for others than himself”); see also Jackson v.

Kment, E.D.Mich. No. 13-cv-10819, 2016 U.S. Dist. LEXIS 33684, * 20 (Mar. 16, 2016) (finding

Plaintiff lacks standing to seek injunctive relief on behalf of “his friends and family members”). And

an adult litigant who wishes to proceed pro se must personally sign the Complaint or Petition to

invoke the Court’s jurisdiction. Steelman v. Thomas, 848 F.2d 194 (6th Cir. 1988); Banks v.

Valaluka, N.D.Ohio No. 1:15-cv-1935, 2015 U.S. Dist. LEXIS 156558, * 23 (Nov. 18, 2015) (citing

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28 U.S.C. § 1654); see Fed.R.Civ.P. 11(a)(“Every pleading...must be signed by at least one attorney

of record...or by a party personally I f the party is unrepresented.”).

Upon review, the Court finds that only Lathan signed the Complaint filed in this action. And

to the extent that Plaintiff Lathan seeks to represent the interests of the other individuals named in

the caption of the Complaint, there is no indication from the Complaint that Plaintiff Lathan is an

attorney licensed to practice law. The Court will therefore consider only the claims made by Lathan

(hereinafter, “Plaintiff”).

Accordingly, the purported claims of Mays, Wilson, Lee, Black, Stewart, Robinson, Hoskins,

Hill, Singleton, and “50 unknown federal detainees” are dismissed.

B. Declaratory and Injunctive Relief

Plaintiff alleges that Defendants failed to provide adequate shoes, hats, and jackets during the

winter season and they failed to address his requests for medical treatment. First, he seeks a “grant

to purchase shoes, hats, and jacket” or an order “compelling [the] holding facility to allow detainees

to purchase [these garments]” or an order “allowing said garments to be dropped off for detainees.”

Second, he seeks an order compelling the U.S. Marshal to transport him to a treatment facility or an

order permitting medical furlough. (Doc. No. 1-1 at 7-8.) Plaintiff’s claims seeking declaratory or

injunctive relief are moot.

It is well-established that an inmate’s request for declaratory and injunctive relief is moot

upon his transfer to a different facility. See Parks v. Reans, 510 F. App’x 414, 415 (6th Cir. 2013)

(“A prisoner’s request for injunctive and declaratory relief is moot upon his transfer to a different

facility.”) (citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)); Clay v. Weidner, N.D.Ohio No.

1:19-cv-1916, 2020 U.S. Dist. LEXIS 104825, at *10 (June 16, 2020).

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Here, at the time Plaintiff filed his Complaint, he was incarcerated at CCNO in Stryker, Ohio.

On February 18, 2021, however, Plaintiff notified the Court that he had been transferred to FCI

Milan. (Doc. No. 10.) In his “Judicial Notice,” Plaintiff stated that he was removed from “the toxic

facility in Stryker, Ohio.” (Id.) Any consideration of Plaintiff’s claims for declaratory and injunctive

relief were therefore rendered moot upon his transfer from the facility about which he complained.

Accordingly, Plaintiff’s request for declaratory and injunctive relief is dismissed as moot.

C. Bivens Claim

Plaintiff appears to allege that Defendants, as federal agents or employees, violated his

constitutional rights when they failed to provide adequate shoes, hats, and jackets; provided

inadequate COVID-19 protocols; and ignored his requests for medical treatment. To the extent that

these claims attempt to challenge the conditions of the facility where Plaintiff was originally

incarcerated, they properly arise, if at all, under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). See Sullivan v. United

States, 90 F.App’x. 862, 863 (6th Cir. 2004) (district court properly construed action as a Bivens

action where plaintiff alleged that he was deprived of a right secured by the United States

Constitution by persons acting under color of federal law). Bivens provides a cause of action against

individual federal agents who allegedly violate the Constitution.

1. Official Capacity

Plaintiff, however, cannot bring a Bivens claim against the United States, its agencies, or its

employees or agents sued in their official capacities for the alleged denial of his constitutional rights.

The United States, as a sovereign, is immune from suit unless it explicitly waives its

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immunity. United States v. Sherwood, 312 U.S. 584, 590-91, 61 S. Ct. 767, 85 L. Ed. 1058 (1941).

In most cases, Congress defines the exact terms and conditions upon which the United States, its

agencies, and its employees may be sued. The terms of the consent define the parameters of federal

court jurisdiction to entertain suits brought against the United States government. United States v.

Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976); Honda v. Clark, 386 U.S. 484,

501, 87 S. Ct. 1188, 18 L. Ed. 2d 244 (1967). And this sovereign immunity extends to agents and

officers of the United States to the extent they are sued in their official capacities. Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 70, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001); see F.D.I.C. v. Meyer, 510

U.S. 471, 484-86, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994).

The United States has not consented to suit in a Bivens action. See Fed. Deposit Ins. Corp.

v. Meyer, 510 U.S. at 484-86; Okoro v. Scibana, 63 F. App’x 182, 2003 WL 1795860 at * 1 (6th Cir.

2003) (stating that a federal prisoner cannot bring a Bivens action against the Bureau of Prisons).

Here, Plaintiff brings a Bivens claim for damages against Defendants Rutter, Sullivan, and

Tharp, in their official capacities. Sovereign immunity therefore bars Plaintiff’s claims.

2. Individual Capacity

Even if the Court construes Plaintiff’s Bivens claims against Defendants in their individual

capacities, Plaintiff’s claims fail.

Liberally construing the Complaint, Plaintiff appears to allege that Defendants have violated

his constitutional rights by: (1) failing to provide adequate shoes, hats, and jackets, which placed

Plaintiff at risk of contracting illnesses, including COVID-19; (2) failing to adhere to COVID-19

protocols; and (3) ignoring Plaintiff’s requests for medical treatment.

A federal detainee’s “‘claims relating to health concerns are analyzed using an

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Eighth-Amendment, deliberate-indifference framework.’” See Hango v. Adducci, 2020 U.S. Dist.

LEXIS 105889, at * 14 (N.D. Ohio June 17, 2020) (quoting Toma v. Adducci, 2020 U.S. Dist. LEXIS

94715, at * 10 (E.D. Mich. May 31, 2020)). See also Solis-Martinez v. Adducci, No. 1:20-cv-1175,

2020 U.S. Dist. LEXIS 127350, at *12 (N.D.Ohio July 20, 2020).

The Eighth Amendment protects all people from “cruel and unusual punishments.” U.S.

Const. amend. VIII. “‘[T]he treatment a prisoner receives in prison and the conditions under which

he is confined are subject to scrutiny under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S.

825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31,

113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993)). Although the Constitution “does not mandate comfortable

prisons,” it “does [not] permit inhumane ones.” Farmer, 511 U.S. at 832 (quoting Rhodes v.

Chapman, 452 U.S. 337, 349, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981)).

The Eighth Amendment imposes a duty on prison officials to provide humane conditions of

confinement by “ensur[ing] that inmates receive adequate food, clothing, shelter, and medical care”

and taking “reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S.

517, 526-527, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). “A prison official’s ‘deliberate indifference’

to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer, 511 U.S.

at 828 (citing Helling, supra; Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321

(1991); Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)).

To state a claim under the Eighth Amendment’s deliberate indifference framework, a prisoner

must demonstrate both objective and subjective components. Wilson v. Williams, 961 F.3d 829, 839

(6th Cir. 2020). He must show that (1) “he is incarcerated under conditions posing a substantial risk

of serious harm” (objective); and (2) an official must “know[] of and disregard[] an excessive risk

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to inmate health or safety” (subjective). Id. at 840 (quoting Farmer, 511 U.S. at 834, 837). In other

words, the prisoner must demonstrate he was subjected to an objectively serious prison condition to

which a defendant prison official acted with subjective “deliberate indifference.” Farmer, 511 U.S.

at 834. The subjective component of a claim requires a prisoner to show that a prison official

“knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Id. at 847. An official may not be held liable if he responded

reasonably to a known risk, even if the harm ultimately was not averted. Id. at 844.

“Not every unpleasant experience a prisoner might endure while incarcerated constitutes cruel

and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d

950, 954 (6th Cir. 1987). And only deliberate indifference to serious medical needs or extreme

deprivations regarding the conditions of confinement will implicate the protections of the Eighth

Amendment. Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).

Shoes, Hats, and Jackets

Plaintiff claims that Defendants failed to provide adequate shoes, hats, and jackets during the

winter season. He states that Defendants’ failure to provide such items has “contribut[ed] to

detainees ... contracting flu, colds, and other illnesses, after exiting recreation.” (Doc. No. 1-1 at 3).

He also states that this failure “place[d] detainees in a precarious situation as to whether to stay

indoors and miss the hour of recreation ... or go to recreation and risk contracting flu, colds, and other

illnesses mainly COVID-19.” (Id. at 4.)

The Eighth Amendment may be violated when prison officials provide inadequate clothing

to inmates required to go outside in the winter. Knop v. Johnson, 977 F.2d 996, 1012-13 (6th Cir.

1992), cert. denied, 507 U.S. 973, 113 S. Ct. 1415, 122 L. Ed. 2d 786 (1993). But courts must

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consider the duration of the exposure to the cold temperatures and the totality of the conditions when

determining whether a constitutional violation has occurred. See Spencer v. Bouchard, 449 F.3d 721,

728-29 (6th Cir. 2006). And the denial of winter clothing, absent some showing of injury, does not

constitute deliberate indifference. See Walker v. Weidner, No. 1:18-cv-640, 2018 U.S. Dist. LEXIS

154664, at *8 (N.D.Ohio Sep. 11, 2018) (citing Ellis v. Mohr, No. 1:13-cv-1058, 2017 U.S. Dist.

LEXIS 152059, at *23 (N.D.Ohio Sep. 19, 2017)). See also Mays v. Springborn, 575 F.3d 643, 648

(7th Cir. 2009) (prison officials’ alleged failure to issue adequate cold weather clothing to an inmate

who suffered from hurt ears, numb hands, possible frostbite, and a cold as a result did “not rise to

the level of the objectively serious harm necessary to show an Eighth Amendment violation” where

the inmate “did not show that he was forced to be in the cold for long periods of time or that he

suffered anything more than the usual discomforts of winter”); Brittenham v. Mackintosh, No.

09-14285, 2010 U.S. Dist. LEXIS 2652, 2010 WL 148337, at *2 (E.D. Mich. Jan. 13, 2010)

(quartermaster’s refusal to provide coat and underwear causing prisoner to be cold does not

demonstrate serious deprivation required to establish an Eighth Amendment violation).

Here, Plaintiff does not indicate that he was required to go outside during the winter. In fact,

he states that he had the option to stay indoors and forego recreation time. Plaintiff also fails to

allege how cold the temperatures were at CCNO when prison officials allegedly refused his requests

for shoes, hats, and jackets. Nor does he allege that he was continuously exposed to cold

temperatures. Rather, it appears from the Complaint that Plaintiff’s exposure to purported cold

temperatures was intermittent, during optional outdoor recreation time only. See Walker, No. 2018

U.S. Dist. LEXIS 154664, at *8. Additionally, he fails to specifically allege that he suffered from

an illness resulting from inadequate clothing; rather, Plaintiff generically alleges that he was placed

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at risk of contracting a cold, the flu, or COVID-19. To the extent that he claims that he contracted

a cold, the flu, or other illness, Plaintiff alleges no facts from which the Court can infer “that he

experienced anything more than the typical discomforts of winter in temporary adverse conditions.”

Id.

Plaintiff therefore fails to allege that he was deprived of the minimal civilized measures of

life’s necessities concerning Defendants’ alleged failure to provide proper clothing. Rhodes, 452 U.S.

at 347.

Even if Plaintiff’s claims could be construed as a sufficiently serious deprivation, Plaintiff

has not alleged facts suggesting that any of the defendants were aware of these conditions and acted

in deliberate indifference toward his health and safety. Deliberate indifference “entails something

more than mere negligence.” Farmer, 511 U.S. at 836. This standard is met if “the official knows of

and disregards an excessive risk to inmate health or safety; the official must both 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.” Flanory v. Bonn, 604 F.3d 249, 253-55 (6th Cir. 2010)(citing Farmer, 511

U.S. at 837).

Here, Plaintiff does not allege facts suggesting that these Defendants had knowledge of an

excessive risk to his health and safety when they failed to provide the requested clothing and

nonetheless disregarded that risk. In fact, Plaintiff concedes that Defendants’ actions constituted

negligence, stating that “Marshal Alex[Rutter], Dennis Sullivan, and “board member John Tharp ...

negligently ignored” Plaintiff’s request for these items. Doc. No. 1-1 at 4. “[A]cting or failing to act

with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of

recklessly disregarding that risk;” it is not mere negligence. Farmer, 511 U.S. at 836.

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Plaintiff therefore fails to state a claim for an Eighth Amendment violation for Defendants’

alleged failure to provide adequate clothing items upon which relief can be granted.

COVID-19

Plaintiff fails to state a claim of deliberate indifference concerning the COVID-19 conditions

at CCNO.

The entirety of Plaintiff’s Complaint as it relates to COVID-19 alleges that Plaintiff is at risk

of “potentially” contracting COVID-19; CCNO has inadequate room to quarantine new arrivals; and

this alleged lack of quarantine has compelled CCNO to file its own lawsuit concerning COVID-19.

(See Doc. No. 1-1 at 4-5.) These statements do not demonstrate that a prison official “knows that

inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable

measures to abate it.” Farmer, 511 U.S. at 847.

On the face of the Complaint, Plaintiff acknowledges that CCNO has taken some actions in

response to the risks presented by COVID-19, stating that new arrivals are required to wear yellow

wristbands and they are “instructed to [wear] face masks at all times.” (See Doc. No. 1-1 at 5.) These

actions are similar to those considered by the Sixth Circuit in the context of a COVID-19-related

Eighth Amendment claim. See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). In Wilson, the Sixth

Circuit concluded that a class of medically vulnerable inmates was not likely to succeed on the merits

of the required subjective component of an Eighth Amendment claim when the Federal Bureau of

Prisons implemented some measures in response to the COVID-19 pandemic, including screening

inmates for symptoms, educating staff and inmates about the virus, quarantining new inmates, and

providing masks. Id.; see also Cameron v. Bouchard, 815 F.App’x 978, 985 (6th Cir.2020) (finding

federal detainees not likely to succeed on the merits of their deliberate indifference claim where the

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jail took reasonable measures in response to COVID-19). Although Plaintiff alleges that CCNO’s

quarantine is inadequate, he fails to allege sufficient facts demonstrating any of the Defendants acted

recklessly–with deliberate indifference–concerning COVID-19 protocols. Farmer, 511 U.S. at 836.

Plaintiff therefore fails to state a plausible claim for an Eighth Amendment violation for

Defendants’ alleged inadequate COVID-19 protocols.

Medical Treatment

Liberally construing Plaintiff’s Complaint, Plaintiff also appears to allege that Defendants

violated his constitutional rights when they ignored his “pleas of emergency medical treatment” for

a “deteriorating shoulder [that] require[s] a cortisone shot” and “the needed removal of a large

irregular growth” on his head. (See Doc. No. 1-1 at 7.) In support, Plaintiff alleges that he has

informed “director Sullivan” for two years, and his requests “ha[ve] also been ignored for multiple

years by defendants.” (Id.)

The Eighth Amendment prohibits prison officials from acting with “deliberate indifference”

toward an inmate’s serious medical needs. See Estelle, 429 U.S. at 104; see also Horn by Parks v.

Madison Cty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994) (“Where prison officials are so deliberately

indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict pain,

they impose cruel and unusual punishment in violation of the Eighth Amendment.”). A prisoner must

therefore demonstrate that (1) his medical condition posed a “substantial risk of serious harm” to

him, and (2) each defendant in question acted with subjective deliberate indifference to that risk. See

Farmer, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).

The objective element requires the existence of a “sufficiently serious” medical need. Farmer,

511 U.S. at 834. A sufficiently serious medical need has been defined as one “that has been

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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.” Harrison v. Ash, 539 F.3d 510, 518

(6th Cir. 2008) (citations omitted).

The subjective element requires “an inmate to show that prison officials have ‘a sufficiently

culpable state of mind in denying medical care.’” Blackmore v. Kalamazoo County, 390 F.3d 890,

895 (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000). To establish the requisite

culpability, a prisoner must demonstrate that the prison official(s) “(1) subjectively knew of a risk

to the inmate’s health, (2) drew the inference that a substantial risk of harm to the inmate existed, and

(3) consciously disregarded that risk.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010);

Brik v. McConnell, No. 4:20-cv-1825, 2021 U.S. Dist. LEXIS 16955, at *6 (N.D.Ohio Jan. 29,

2021). “[A]n inadvertent failure to provide adequate medical care” is not “repugnant to the

conscience of mankind” and is therefore insufficient to state a claim of deliberate indifference.

Estelle, 429 U.S. at 105-106.

Here, Plaintiff fails to allege facts suggesting his purported medical condition is sufficiently

serious. His sole statement concerning his “deteriorating shoulder” and “irregular growth” on his

head does not constitute so obvious a condition that a layperson can easily recognize the necessity

for medical attention. Nor does this statement establish that Plaintiff has been diagnosed by a

physician as mandating treatment. Harrison, 539 F.3d at 518.

Moreover, even if the Court were to find Plaintiff’s alleged medical condition sufficiently

serious, Plaintiff’s conclusory statement that Defendants have “ignored” his condition is insufficient

to state a claim that any of the defendants were deliberately indifferent to his purported condition.

See Mason v. Eddy, No. 1:18-cv-2968, 2019 U.S. Dist. LEXIS 134550, at *32 (N.D.Ohio Aug. 9,

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2019) (prisoner’s conlusory allegation that a prison official “ignored” his chin infection and “refused”

him treatment fails to state a claim for deliberate indifference); Hartman v. Pickney, No. 1:18-cv-

1060, 2018 U.S. Dist. LEXIS 153871, at *7-8 (N.D. Ohio Sept. 10, 2018) (prisoner’s conclusory

allegation that defendant “ignored” his medical needs is insufficient to support a plausible inference

that the defendant had the requisite subjective state of mind to demonstrate deliberate indifference).

Plaintiff therefore fails to state a claim for deliberate indifference concerning his alleged

medical condition.

D. State Law Tort Claims

Plaintiff states that Defendants’ alleged failure to provide adequate clothing “equates to

“malicious [malice], wanton disregard of the safety of [the] detainees” and is “actional tort” and

Defendants’ conduct “[a]mount[s] to actual malice, actus reus, imbecility, tortious behavior, wilful

conduct, wanton conduct, natural and probable consequences, [and] frolic of their own.” (Doc. No.

1-1 at 6-7.) To the extent Plaintiff is alleging state law tort claims, Plaintiff’s claims are unavailing.

Plaintiff’s tort claims can only be brought under the Federal Tort Claims Act (“FTCA”),

which provides the exclusive jurisdictional basis for tort claims against the United States and its

employees for actions committed in the scope of their employment. 28 U.S.C. § 2679(b)(1). The

United States’ consent to suit under the FTCA, however, is limited to those in which the tort claims

were “presented in writing to the appropriate federal agency within two years after such claim

accrues.” 28 U.S.C. § 2401(b). The timely filing of an administrative claim is a requirement of the

FTCA. If the administrative requirements of the FTCA have not been fulfilled, the case must be

dismissed. Dolan v. United States, 514 F.3d 587, 593 (6th Cir.2008).

Here, Plaintiff has not demonstrated that he has complied with the exhaustion requirement

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necessary for asserting a tort claim against the United States under the FTCA. His purported state

tort law claims are therefore dismissed. See id.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss (Doc. Nos. 11 and 12) are granted

and this action is dismissed.

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

not be taken in good faith.

IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

June 7, 2021

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