# Pollard v. Phillips

> District Court, N.D. Ohio · September 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10371195

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

COREY POLLARD, et al., ) CASE NO. 4:20-cv-01868
)
Plaintiffs, ) JUDGE DAVID A. RUIZ
)
v. )
)
WARDEN MICHAEL PHILLIPS, )
) MEMORANDUM OPINION AND ORDER
Defendant. )

This matter is before the Court upon a Motion to Dismiss Plaintiffs’ Complaint filed by
Defendant Warden Michael Phillips (Defendant or Phillips) (R. 97), and Plaintiff Omari Patton’s
Motions for Appointment of Counsel (R. 99) and Requesting a Hearing by Video Pursuant to the
Motion for Appointment of Counsel (R. 109). For the following reasons, the Court GRANTS
Defendant’s Motion to Dismiss and DENIES Patton’s Motions for Appointment of Counsel and
Hearing.
I. Procedural and Factual Background
In August 2020, Omari Patton (Patton), Giovani Marrero (Marrero), and Tyrone Vickers
(Vickers) (collectively, Plaintiffs) were federal detainees in the custody of the United States
Marshals Service in the Northeast Ohio Correctional Center (NEOCC). (R. 1, PageID# 5 ¶¶ 4–
6) . Defendant is the Warden at the NEOCC. (Id., PageID# 6 ¶ 12). The NEOCC is a private
prison facility owned and operated by CoreCivic, Inc. (CoreCivic) and located in Youngstown,
Ohio. (R. 97, PageID# 447).
On August 21, 2020, the Court received a pro se Complaint from nine plaintiffs (Initial
Plaintiffs), including Patton, Marrero, and Vickers, alleging that Phillips, in his official and
individual capacities, had failed to provide Initial Plaintiffs adequate protection from COVID-19
at the NEOCC in violation of Initial Plaintiffs’ rights under the Eighth Amendment of the United
States Constitution. (R. 1, PageID# 7, 9–16, 18 ¶¶ 13, 28–60). Specifically, Initial Plaintiffs
alleged that Phillips failed to implement proper protections to prevent the spread of COVID-19
and that the NEOCC was unprepared to treat individuals who contracted COVID-19. (See, e.g.,
id., PageID# 11 ¶ 42 (failure to disinfect cell); id., PageID# 12 ¶¶ 43–47 (failure to implement
social distancing measures); id., PageID# 14 ¶ 48 (failure to provide soap and hand sanitizer);
id., PageID# 15–16 ¶¶ 55–60 (facility unprepared to treat COVID-19 patients)). Initial Plaintiffs
sought certification of a class, injunctive relief, a declaratory judgment, and damages. (Id.,

PageID# 16–17).
Judge Benita Pearson, the previously assigned District Judge, issued orders that
dismissed Initial Plaintiffs’ class action allegations and requests for relief (R. 37, PageID# 237–
238) and two petitions for writs of habeas corpus (R. 16, PageID# 70–71; R. 53, PageID# 290).
In addition, Judge Pearson denied Plaintiffs’ two motions for default judgment. (R. 85, PageID#
394).
The only remaining plaintiffs in this action are Patton, Vickers, and Marrero. (R. 54,
PageID# 295–296; R. 79, PageID# 375). On December 7, 2020, Judge Pearson denied Plaintiffs’
request to join CoreCivic and the U.S. Marshals Service as defendants and terminated both
en tities on the docket. (R. 37, PageID# 238). As a result, Phillips is the only defendant in this
action. On November 1, 2021, Judge Pearson instructed Patton to not sign court filings for
Marrero and Vickers, and ordered that each pro se plaintiff must sign court filings on their own
behalf. (R. 96, PageID# 444).
Phillips filed a Motion to Dismiss Plaintiffs’ Complaint, on November 4, 2021, arguing
that Plaintiffs could not legally pursue their alleged Bivens claims; and, further that their claims
were moot because they were no longer housed at the NEOCC. (R. 97). Marrero and Vickers
have not opposed Phillips’s motion or requested an extension of time to do so. Although Patton
filed a Response to the Motion to Dismiss, he did not address Phillips’s legal arguments. (R. 98).
On November 30, 2021, Phillips filed a reply brief in support of his Motion to Dismiss. (R. 100).
In addition, Patton filed a Motion for Appointment of Counsel on November 18, 2021.
(R. 99). Defendant opposes the motion and Patton has filed a reply. (R. 101; R. 102).1 Patton
also filed a Motion Requesting a Hearing by Video on April 15, 2022. (R. 109).
None of the Plaintiffs is detained at the NEOCC.2

II. Motion to Dismiss
A. Fed. R. Civ. P. 12(b)(6) Standard
When ruling upon a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6), a court
must accept as true all the factual allegations contained in the complaint and construe the

1 This action was reassigned to the undersigned on February 22, 2022.
2 The Court notes that Patton filed a Notice of Change of Address on July 5, 2022, indicating he
was transferred back to the NEOCC. (R. 111). According to the Federal Bureau of Prisons’
(BOP) online inmate search function, however, Patton is “not in BOP custody,” and Marrero has
been released. See Find an Inmate, Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last
visited Aug. 22, 2022). There are no search results for Vickers indicating he appears not to be in
the BOP’s custody. Id.
co mplaint in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S.
89, 93–94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007); accord Streater v. Cox, 336 F.
App’x 470, 474 (6th Cir. 2009). Nonetheless, a court need not accept a conclusion of law
as true. The governing standard is further set forth as follows:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” As
the Court held in [Bell Atlantic Corp. v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L.Ed. 2d 929, the pleading standard Rule 8 announces does not require
“detailed factual allegations,” but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S. Ct. 1955, 167
L.Ed. 2d 929 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92
L.Ed. 2d 209 (1986)). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” 550 U.S., at
555, 127 S. Ct. 1955, 167 L.Ed. 2d 929. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual enhancement.” Id., at 557, 127 S.
Ct. 1955, L.Ed. 2d 929.

To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570,
127 S. Ct. 1955, 167 L.Ed. 2d 929. A claim has facial plausibility 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., at 556, 127
S. Ct. 1955, 167 L.Ed. 2d 929. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id., at 557, 127 S. Ct. 1955,
167 L.Ed. 2d 929 (brackets omitted).

Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)).
B. Analysis
When a plaintiff fails to respond in an opposition brief to arguments in a
defendant’s motion to dismiss, the “plaintiff has waived his opposition to dismissal of the
cl aim.” Durham v. Niffenegger, 2019 WL 1050018, at *8 (S.D. Ohio Mar. 5, 2019)
(citing Humphrey v. U.S. Att’y Gen.’s Office, 279 F. App’x 328, 331 (6th Cir. 2008)). It is
also “well established” that the Court has the authority to grant a motion to dismiss
because it is unopposed, as a failure to respond to the motion may be treated “as a
confession to” its merit. Demsey v. R.J. Reynolds Tobacco Co., 2005 WL 1917934, at *2
(N.D. Ohio Aug. 10, 2005) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th
Cir. 2000)); see also Brown v. Panther Premium Logistics, Inc., 2017 WL 6502822, at *1
(N.D. Ohio Sept. 12, 2017) (Gaughan, C.J.) (“This Court may interpret the absence of a
response to a motion to dismiss as a waiver of opposition.”).
Phillips’s Motion to Dismiss Plaintiffs’ Complaint argues that Plaintiffs’ alleged
Bivens claims are not actionable; and, further argues that their claims are moot because
they are no longer housed at the NEOCC. (R. 97). Marrero and Vickers have not filed
any response to Phillips’s motion to dismiss, and Patton’s Response fails to provide any
opposition to Phillips’s legal arguments moving the Court to dismiss Plaintiffs’

Complaint. (R. 98, PageID# 456–457). Rather, Patton’s Response merely notes the
Plaintiffs “are in different institutions” and unable to jointly respond to the motion. (Id.).
Because no Plaintiff has opposed the motion to dismiss, all Plaintiffs have waived their
arguments in opposition to Phillips’s motion, and the Court orders dismissal of the
Complaint.
Moreover, when considering the merits of Defendant’s motion, the Court finds
Plaintiffs’ Complaint must be dismissed. At the outset, the Court construes Plaintiffs’
Eighth Amendment allegations as attempting to allege Bivens claims. See Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.
E d. 2d 619 (1971). A Bivens claim is a “private right of action . . . against federal officers
who are alleged to have violated a citizen’s constitutional rights.” Marte v. Pugh, 2012
WL 3075894, at *5 (N.D. Ohio July 30, 2012) (citing Bivens, 403 U.S. at 388).
Plaintiffs’ Bivens claims against Phillips in his official capacity fail, however. An
official-capacity claim against Phillips is the same as a claim against CoreCivic, the
entity for which Phillips is an agent. Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S.
Ct. 3099, 87 L Ed. 2d 114 (1985) (“Official-capacity suits . . . ‘generally represent only
another way of pleading an action against an entity of which an officer is an agent.’”
(quoting Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56
L. Ed. 611 (1978))). Because the previous district court judge terminated CoreCivic as a
defendant in this action, an official-capacity claim against Phillips cannot move forward.
Additionally, it is well established that Bivens claims do not extend to allow recovery
against a private entity, such as CoreCivic. See Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 63, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001).

Plaintiffs’ claims against Phillips in his individual capacity are also unsuccessful.
The Supreme Court has held that courts cannot “imply the existence of an Eighth
Amendment-based damages action (a Bivens action) against employees of a privately
operated federal prison” because such a claim “focuses upon a kind of conduct that
typically falls within the scope of traditional state tort law.” Minneci v. Pollard, 565 U.S.
118, 120, 125–26, 132 S. Ct. 617, 181 L. Ed. 2d 606 (2012); see also Ayon v. Ne. Ohio
Corr. Ctr., 478 F. App’x 999, 1000 (6th Cir. 2012) (per curiam) (holding that there was
no Bivens remedy against the Warden of the NEOCC “because state tort remedies [were]
available”). Separately, Plaintiffs’ claims for injunctive and declaratory relief are mooted
be cause Patton, Vickers, and Marrero are no longer detained at the NEOCC. See Colvin
v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (“[A]ny declaratory or injunctive relief that
[plaintiff] seeks stemming from his complaint has been mooted by his transfer to a
different prison facility.”); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (“[T]o the
extent [plaintiff] seeks declaratory and injunctive relief his claims are now moot as he is
no longer confined to the institution that [violated his constitutional rights].”).
For the foregoing reasons, the Court grants Phillips’s Motion to Dismiss.
III. Motions for Appointment of Counsel and Hearing
“Appointment of counsel in a civil case is not a constitutional right. It is a
privilege that is justified only by exceptional circumstances.” Lavado v. Keohane, 992
F.2d 601, 605–06 (6th Cir. 1993) (internal quotations and citations omitted) (quoting
Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)). To determine whether
“exceptional circumstances” exist, courts should consider “the type of case and the
abilities of the plaintiff to represent himself.” Id. (quoting Archie v. Christian, 812 F.2d

250, 253 (5th Cir. 1987)). This generally involves a determination of the “complexity of
the factual and legal issues involved.” Id. at 606 (quoting Cookish v. Cunningham, 787
F.2d 1, 3 (1st Cir. 1986)).
In his Motion for Appointment of Counsel, Patton argues that the Court should
appoint counsel to Plaintiffs because Patton, Vickers, and Marrero are all detained
separately, and it is “impractical” for Plaintiffs to comply with the Court’s order that
Plaintiffs each sign filings on their own behalf. (R. 99, PageID# 459). But Plaintiffs’
physical location is not a factor contemplated by the Sixth Circuit in the determination of
“exceptional circumstances” for the appointment of counsel; nor has Patton shown that he
is unable to pursue his individual claims on his own behalf. The Court concludes that due
to Patton’s ability to represent himself—evident by Patton’s various filings in this action
and his efforts to represent other individuals—that he has not shown “exceptional
circumstances” present here. As a result, the Court denies Patton’s Motion for
Appointment of Counsel. The Court also denies Patton’s Motion Requesting a Hearing
by Video Pursuant to the Motion for Appointment of Counsel because a hearing is not
necessary for the Court’s decision on the Motion for Appointment of Counsel.
IV. Conclusion
Defendant’s Motion to Dismiss (R. 97) is hereby GRANTED. Patton’s Motion for
Appointment of Counsel (R. 99) and Motion Requesting a Hearing by Video (R. 109) are hereby
DENIED.
IT IS SO ORDERED.
s/ David A. Ruiz
David A. Ruiz
United States District Judge

Date: September 2, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10371195. Public record. Not legal advice.