# Magby v. Fender

> District Court, N.D. Ohio · May 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10370880

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** May 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10370880

## How later opinions describe it (automated extraction)

- recognizing that federal question jurisdiction is divested by unsubstantial claims
- holding that, to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the claim
- recognizing that federal question jurisdiction is divested by unsubstantial claims

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

RONALD MAGBY, ) CASE NO. 1:22 CV 00019
)
Plaintiff, ) JUDGE DAVID A. RUIZ
)
v. )
)
WARDEN DOUGLAS A. FENDER, ) ORDER
et al.., )
)
Defendants. )

Pro se plaintiff Ronald Magby, an inmate in the Lake Erie Correctional Institution
(“LAECI”), filed this fee-paid civil rights complaint and request for injunction under 42 U.S.C. §
1983 against ten defendants: Douglas A. Fender, Warden; Dr. Swanson, Advance Level
Provider; Gillespie, Chief Medical Officer; Ms. L. Witt, Medical Administrator; Shirley
Christian, Mahoning County Common Pleas Court Judge; Annette Chambers-Smith, Ohio
Department of Rehabilitation and Correction (“ODRC”) Director; Cheryl Williams, State
Medical Director; Ms. Reberra, Medical Director; Ms. Akien, medical doctor; and Jerry Greene,
Mahoning County Sheriff. (Doc. No. 1). Plaintiff contends that the defendants’ inadequate
medical care or treatment demonstrated a deliberate indifference to his serious medical needs and
has therefore subjected him to cruel and unusual punishment.
Plaintiff seeks monetary and injunctive relief.
I. Background

According to the complaint, Plaintiff sustained serious injuries on November 24, 2015,
prior to his incarceration. He was life-flighted to a hospital in Akron, Ohio, where he was treated
for third-degree burns. Thirty days later, he was charged criminally for the incident related to his
injuries. (Doc. No. 1 at 12). He was sentenced, convicted, and transported on January 18, 2017 to
Lorain Correctional Institution, were he stayed for two months. Thereafter, he was transported to
LAECI, where he is currently incarcerated. (Id. at 13).
Plaintiff’s complaint contains very few factual allegations. He states that he received
treatment for his burns while in Akron, and “Dr. Andrews” determined that Plaintiff required
surgery. According to Plaintiff, Judge Christian “denied the doctor’s orders.” (Id. at 12). Plaintiff
maintains that he did not receive surgery while incarcerated at Lorain Correctional Institution,
and while at LAECI, he received “minimal treatment.” (Id. at 13). Attached to Plaintiff’s
complaint is an affidavit in which he avers that he is in “dire need of serious medical
care/surgery” for the removal of “pathogens” located behind his ears, on his neck, on his face,

and on his chest, which may become cancerous if not removed. (Id. at 17). Plaintiff states that he
has filed numerous kites/informal complaints informing the LAECI staff of his serious medical
needs, and he attaches copies of several kites. These kites/informal complaints indicate that
Plaintiff has been receiving treatment from LAECI’s medical staff. (See Doc. No. 1-4).
Plaintiff alleges in a general, conclusory fashion that “each … defendant[] was involved
and caused [him] harm that violated” his Eighth Amendment rights. (Doc. No. 1 at 10).
Specifically, he alleges the following: Judge Christian failed to intervene in his medical care;
Sheriff Greene failed to intervene on his behalf while Plaintiff was in his custody; Director
Chambers-Smith failed to have her medical staff report ongoing medical cases; Warden Fender
is ”in charge of the institution and is responsible for failure to intervene and act upon [Plaintiff’s]
safety”; and Medical Administrator Witt “acted with deliberate indifference to Plaintiff-Magby’s
‘serious medical’ needs for failure to intervene and act/provide adequate medical care …”
Plaintiff merely lists defendants Williams, Swanson, Reberra, Gillespie but includes no specific
allegations against them. And Plaintiff identifies Ms. Akien as a defendant in the case caption

but fails to include her in the body of the complaint. (Id. at 10-11).
On September 19, 2018, Plaintiff filed a complaint in the Ashtabula County Court of
Common Pleas for preliminary injunction/temporary restraining order against the LAECI’s
Warden, the former ODRC Director, Sheriff Greene, Ms. Witt, Dr. Swanson, Ms. Reberra, Ms.
Gillespie, and Ms. Williams, among others, alleging an Eighth Amendment violation based on
their failure to intervene and provide him with adequate medical treatment for his injuries
sustained in 2015. See Magby v. Sloan, 2019 Ohio App. LEXIS 4392 (Ohio Ct. App. Oct. 21,
2019). The factual allegations in the complaint filed in Ashtabula County is virtually identical to
the complaint filed here. See id. at * 3-5. The trial court dismissed Plaintiff’s complaint, and the

Eleventh District Court of Appeals affirmed in part, reversed in part, and remanded for further
proceedings. Id. at * 1-2. The Eleventh District determined that Plaintiff fairly stated a deliberate
indifference claim against Plaintiff’s medical providers (Witt, Swanson, Reberra, Gillespie, and
Williams) as Plaintiff demonstrated these individuals had direct contact with Plaintiff “and/or
addressed complaints raised by [Plaintiff] through kites and other communications.” Id. at * 15.
The Eleventh District found, however, that Plaintiff failed to state a claim against those
individuals who were not specifically associated with Plaintiff’s health care and safety (the
ODRC Director, Sheriff Greene, the deputy wardens, and the warden). The court determined that
Plaintiff failed to satisfy the subjective element of a deliberate indifferent claim against these
administrative officials and Plaintiff cannot state a claim against these individuals for vicarious
liability. Id. at * 15-16.
On remand, the trial court granted summary judgment in favor of Plaintiff’s medical
providers, stating that the evidence demonstrates Plaintiff’s medical needs “were being addressed
appropriately” and “[e]verything before the court shows plaintiff was receiving continued

treatment before and during the pendency of this lawsuit. Plaintiff has not been denied
appropriate medical care.” See Magby v. Sloan, 2021 Ohio App. LEXIS 3103, at * 5-6 (Ohio Ct.
App. Sept. 13, 2021). The Eleventh District Court of Appeals affirmed the trial court’s decision.
Id. at * 11. It does not appear that Plaintiff appealed this decision to the Ohio Supreme Court.
II. Standard of Review

A district court is expressly authorized to dismiss any civil action filed by a prisoner
seeking relief from a governmental entity, as soon as possible after docketing, if the Court
concludes that the complaint fails to state a claim upon which relief may be granted, or if the
plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915A; Siller v. Dean, No. 99-5323, 2000 U.S. App. LEXIS 1494, at *5 (6th Cir. Feb. 1, 2000);
see Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing numerous Supreme Court cases for
the proposition that attenuated or unsubstantial claims divest the district court of jurisdiction); In
re Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988) (recognizing that federal question
jurisdiction is divested by unsubstantial claims).
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The
plaintiff is not required to include detailed factual allegations, but he or she must provide more
than “an unadorned, the Defendant unlawfully harmed me accusation.” Iqbal, 556 U.S. at 678.
A pleading that offers legal conclusions or a simple recitation of the elements of a cause of

action will not meet this pleading standard. Id.
When reviewing a complaint, 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)
(citing Sistrunk, 99 F.3d at 197 (6th Cir. 1996)). The courts, however, are not required to conjure
unpleaded facts or construct claims against defendants 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).
III. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging Defendants’ inadequate

medical care subjected him to cruel and unusual punishment in violation of the Eighth
Amendment. To establish a violation under § 1983, a plaintiff must show that a person acting
under color of state law deprived him or her of rights, privileges, or immunities secured by the
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101
L. Ed. 2d 40 (1988).
A. Judge Christian
As an initial matter, any claims against Judge Christian must fail. Judicial officers
generally are absolutely immune from civil suits for money damages. Mireles v. Waco, 502 U.S.
9, 9, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir.
1997). They are accorded this broad protection to ensure that the independent and impartial
exercise of their judgment in a case is not impaired by the exposure to damages by dissatisfied
litigants. Barnes, 105 F.3d at 1115. For this reason, absolute immunity is overcome only when
(1) the conduct alleged is performed at a time when the defendant is not acting as a judge; or (2)
the conduct alleged, although judicial in nature, is taken in complete absence of all subject matter

jurisdiction of the court over which he or she presides. Mireles, 502 U.S. at 11-12; Barnes, 105
F.3d at 1116. A judge will be not deprived of immunity even if the action at issue was performed
in error, done maliciously, or exceeded his authority. Stump v. Sparkman, 435 U.S. 349, 356, 98
S. Ct. 1099, 55 L. Ed. 2d 331 (1978).
Here, Plaintiff objects to Judge Christian’s apparent decision to “den[y] doctor’s orders
for [Plaintiff] to continue treatment” while incarcerated in the Mahoning County Jail pending
court hearings. (Doc. No. 1 at 10). Decisions concerning pending motions, pretrial proceedings,
and evidence are all actions typically performed by judges in criminal matters. Plaintiff has not
established that Judge Christian acted clearly outside of the subject matter jurisdiction of the

court over which the judge presides. Judge Christian is therefore absolutely immune from
damages in this action.
B. Warden Fender, ODRC Director Chambers-Smith, Sheriff Greene, and Ms. Akien
Additionally, Plaintiff’s complaint fails to state a claim on which relief can be granted
against Warden Fender, ODRC Director Chambers-Smith, and Sheriff Greene. To hold an
individual defendant liable under § 1983, a plaintiff must allege “personal involvement” in the
alleged unconstitutional conduct. See Grinter, 532 F.3d at 575 (personal involvement is required
to incur liability under § 1983). It is a basic pleading requirement that a plaintiff must attribute
specific factual allegations to particular defendants. Twombly, 550 U.S. at 555 (holding that, to
state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the
claim). Moreover, it is well established that liability may not be imposed under §1983 solely on
the basis of respondeat superior. See Iqbal, 556 U.S. at 676; Monell v. Dep’t of Social Servs., 436
U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Hill v. Marshall, 962 F.2d 1209, 1213
(6th Cir. 1992). Rather, § 1983 liability must be premised on a defendant’s own, “active

unconstitutional behavior” and not a mere failure to act. Greene v. Barber, 310 F.3d 889, 899
(6th Cir. 2002).
Here, Plaintiff alleges that Warden Fender is “in charge of the institution” and is
therefore responsible for failing to intervene in his health care. (See Doc. No. 1 at 10-11). He
also alleges that Sheriff Greene “failed to act to get [Plaintiff] some medical attention” while
Plaintiff was in the Sheriff’s custody. (Id. at 10). Finally, Plaintiff alleges that Director
Chambers-Smith failed to have her prison’s medical staff monitor and report “these types of
medical cases.” (Id.). Plaintiff’s allegations against Fender, Chambers-Smith, and Greene
consist solely of the administrative officials’ supervisory responsibilities, and Plaintiff has

alleged no facts indicating these defendants participated in the alleged unconstitutional conduct.
Accordingly, Plaintiff’s action against Warden Fender, Director Chambers-Smith, and Sheriff
Greene must be dismissed.
Plaintiff also lists “Ms. Akien” as a defendant in the complaint but provides no specific
allegations of wrongdoing. Where, as here, an individual is named as a defendant without
allegations of discernible specific conduct relating to Plaintiff’s purported claim, the complaint
against this individual is subject to dismissal even under the liberal construction afforded to pro
se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (“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.”).
C. Swanson, Gillespie, Witt, Williams, and Reberra
Finally, Plaintiff’s deliberate indifference claims concerning the remaining defendants
(Swanson, Gillespie, Witt, Williams, and Reberra) are barred by res judicata. This is the second

case Plaintiff has filed against medical personnel for the purported inadequate medical treatment
of his third-degree burns in 2015. He filed an action in the Ashtabula County Court of Common
Pleas on September 19, 2018. See Magby v. Sloan, 2019 Ohio App. LEXIS 4392. On September
15, 2020, the trial court found that Plaintiff’s allegations of inadequate medical treatment did not
state a claim under the Eighth Amendment. See Magby v. Sloan, 2021 Ohio App. LEXIS 3103,
at * 5-6. And on September 13, 2021, the Eleventh District Court of Appeals affirmed the trial
court’s decision. Id. at * 11.1
The term “res judicata” literally means “a matter [already] judged.” The doctrine of res
judicata bars duplicative litigation based on the same event or events. Montana v. United States,

440 U.S. 147, 153 (1979); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979). When
one court has already resolved the merits of a case, another court will not revisit them. Id. The
doctrine of res judicata therefore precludes a party from bringing a subsequent lawsuit on the
same claim or from raising a new defense to defeat the prior judgment. Gargallo v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660 (6th Cir. 1990). It bars relitigation of
every issue actually brought before the Court and every issue or defense that should have been
raised in the previous action. Id. The purpose of this doctrine is to promote the finality of

1 The Court takes judicial notice of the public dockets, opinions, and proceedings issued by other
courts. Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (citation
omitted).
judgments and thereby increase certainty, discourage multiple litigation, and conserve judicial
resources. Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1229 (6th Cir. 1981).
This case is banned by res judicata in two ways. First, the claims and issues in this case
were asserted against virtually the same defendants based on the same incident that was the
subject of the Ashtabula County case. Plaintiff filed this virtually identical case against many of

the same defendants approximately four months after the Eleventh District Court of Appeals
affirmed the trial court’s dismissal of Plaintiff’s claims against the medical personnel. Plaintiff’s
addition of Judge Christian and Ms. Akien does not alter the nature of the underlying claims. It is
apparent that Plaintiff is attempting to litigate that same case again in federal court in the hope of
obtaining a different result. Res judicata bars this action.
Furthermore, res judicata bars Plaintiff from relitigating in federal court the claims and
issues that were previously decided by a state court. Bragg v. Flint Bd. of Educ., 570 F.3d 775,
776 (6th Cir. 2009). As previously indicated, the Ohio courts have already determined that
Plaintiff has failed to demonstrate medical personnel provided inadequate medical care in

violation of the Eighth Amendment. See Magby v. Sloan, 2021 Ohio App. LEXIS 3103. Plaintiff
continues to assert these same claims here. Because those matters have been decided by the state
court, res judicata bars the relitigation of those claims and issues in this court.
Moreover, even if Plaintiff’s claims are not barred by res judicata, Plaintiff fails to state
an Eighth Amendment claim on which relief can be granted. Failure to provide adequate medical
treatment to a prisoner is a violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment only when it results from “deliberate indifference” to the prisoner’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). To
state a claim, a prisoner must show that his medical condition posed a “substantial risk of serious
harm” to him and that the defendant in question acted with “deliberate indifference” to that risk.
See Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
It is well established that “a complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment.” Estelle, 429 U.S. at 106. “Deliberate indifference requires more than mere

negligence, more even than medical malpractice.” Mitchell v. Hininger, 553 F. App’x 602, 604
(6th Cir. 2014). “The defendant must know[] that inmates face a substantial risk of serious harm
and disregard[ ] that risk by failing to take reasonable measures to abate it.” Id., citing Farmer,
511 U.S. at 847.
In evaluating an Eighth Amendment deliberate indifference claim, courts distinguish
between cases where the complaint alleges a complete denial of medical care and those cases
where the prisoner claims he received inadequate medical treatment. Alspaugh v. McConnell,
643 F.3d 162, 169 (6th Cir. 2011). Unless the medical treatment a prisoner has received was “so
woefully inadequate as to amount to no treatment at all,” Mitchell, 553 F. App’x at 604, “[w]here

a prisoner has received some medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5
(6th Cir. 1976).
Here, Plaintiff admits in his complaint that he received some treatment for his injuries by
the medical staff at LAECI. And the kites, requests, and informal complaints attached to his
complaint indicate that Plaintiff has been examined by medical personnel and has received
medications. Even accepting as true his contention that the care he received was improper and
allowed his condition to worsen, his allegations at the most suggest claims for negligence and
medical malpractice. See Estelle, 429 U.S. at 107. These allegations are insufficient to support a
plausible federal constitutional claim that the defendants acted with “deliberate indifference.”
Plaintiff therefore fails to state a claim under the Eighth Amendment.
IV. Conclusion

Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915A. 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.
IT IS SO ORDERED.

DAVID A. RUIZ
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10370880. Public record. Not legal advice.