Glaser v. Smith

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD S. GLASER, ) CASE NO. 4:22-cv-1019

)

)

PLAINTIFF, ) JUDGE SARA LIOI

)

)

v. ) MEMORANDUM OPINION AND

) ORDER

CORRECTION OFFICER AUSTIN SMITH, )

et al., )

)

)

DEFENDANTS. )

Defendants Correction Officer Austin Smith (“CO Smith”), Correction Officer Scott

Gorby (“CO Gorby”), Correction Officer Philip Carter (“CO Carter”), Warden David Bobby

(“Warden Bobby”), CoreCivic Inc., and CoreCivic of Tennessee, LLC (collectively, “CoreCivic”

and, together with the other defendants, “defendants”), moved this Court to dismiss for failure to

state a claim several claims alleged in the amended complaint. (Doc. No. 13 (Motion).) Plaintiff

Donald S. Glaser (“Glaser”) filed an opposition (Doc. No. 14 (Opposition)), and defendants filed

a reply (Doc. No. 15 (Reply)). For the reasons discussed herein, defendants’ motion to dismiss is

GRANTED IN PART and DENIED IN PART.

I. BACKGROUND1

Glaser filed the operative amended complaint on August 23, 2022 (Doc. No. 11

(Complaint)), alleging several claims related to a June 15, 2021 incident (the “Incident”) that

occurred while he was in custody at the Northeast Ohio Correctional Center (“NEOCC”). (See

1 This recitation of facts as alleged in the amended complaint is not meant to constitute findings of fact. The facts

alleged in the amended complaint are taken as true simply for purposes of resolving this motion. See Cooper v. Pate,

378 U.S. 546, 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964) (per curiam) (noting that “the allegations of the complaint”

must be “tak[en] as true” on a motion to dismiss).

generally id.) CoreCivic operated NEOCC at all relevant times. (Id. ¶ 12.) Warden Bobby, CO

Smith, CO Gorby, CO Carter, and defendants Correction Officers John and Jane Does 1 to 25

(“CO Does”) were employed by CoreCivic at NEOCC at all relevant times. (Id. ¶¶ 13, 41.)

On June 15, 2021, while Glaser was an inmate at NEOCC, CO Smith entered his cell to

perform a strip search. (Id. ¶¶ 19, 21.) Glaser objected to the strip search and informed CO Smith

that Glaser was experiencing a mental health crisis—namely, an anxiety attack. (Id. ¶ 22.) CO

Smith left Glaser’s cell but returned shortly thereafter with CO Gorby, CO Carter, and/or CO Does.

(Id. ¶ 23.) While Glaser continued experiencing an anxiety attack, CO Smith, CO Gorby, CO

Carter, and/or CO Does (collectively, the “COs”) entered Glaser’s cell and assaulted Glaser while

Glaser’s back was turned to the COs, and then subjected Glaser to a strip search. (Id. ¶¶ 24, 28.)

Glaser alleges that the COs' assault and strip search “worsened [his] mental health[,]”

“injured [his] left ankle, left shoulder, and cut [] Glaser near [his] left eye.” (Id. ¶¶ 29–30.) Glaser

was never given medical assistance for either his mental health crisis or his physical injuries, which

resulted from the assault and strip search. (Id. ¶¶ 31–35.) Glaser wrote grievances for assault,

excessive force, and denial of medical treatment but never received a response or remedy from

any of the defendants. (Id. ¶ 36.) Thereafter, Glaser brought this suit against the defendants.

II. LEGAL STANDARD

In the context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the sufficiency of the

complaint is tested against the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), which

provides that a complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” Although this standard is liberal, Rule 8 still requires a plaintiff to

allege sufficient facts that give the defendant “fair notice of what the plaintiff’s claim is and the

grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627,

161 L. Ed. 2d 577 (2005) (quotation marks and citation omitted). Thus, “[t]o survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true,” to state a plausible

claim. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.1955, 167 L. Ed. 2d 929 (2007)).

A claim is facially plausible “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. (citing

Twombly, 550 U.S. at 556). Plausibility “is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.’” Id. “[W]here the well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. P. 8(a)(2) (second alteration in original)). In such a case, the plaintiff has not

“nudged [his] claims across the line from conceivable to plausible, [and the] complaint must be

dismissed.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 683.

A complaint need not set down in detail all the particulars of a plaintiff’s claim. However,

“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. at 678–79 (stating that this standard requires “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation”). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678

(citing Twombly, 550 U.S. at 555). The complaint “must contain either direct or inferential

allegations respecting all the material elements to sustain a recovery under some viable legal

theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (internal

quotations marks omitted) (emphasis in original), abrogated on other grounds by Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149

L. Ed. 2d 855 (2001).

III. DISCUSSION

Glaser’s amended complaint alleges eleven separate counts against the defendants.

Defendants have moved to dismiss all or part of six of those claims: (1) Count Two as to Glaser’s

mental health needs (deliberate indifference to serious medical needs in violation of 42 U.S.C. §

1983), (2) Count Five in its entirety (spoliation of evidence), (3) Count Six as against CoreCivic

(failure to intervene), (4) Count Seven in its entirety (civil conspiracy), (5) Count Ten

(discrimination on the basis of disability) as to the alleged violations of the Americans with

Disabilities Act and Rehabilitation Act, and (6) Count Eleven in its entirety (supervisory liability

for violations of civil rights pursuant to 42 U.S.C. § 1983). Defendants also move this Court to

dismiss CO Does. The Court will address each in turn.

A. Count Two: 42 U.S.C. § 1983 Claim for Deliberate Indifference to Serious Medical

Needs in Violation of the Eighth Amendment and Ohio Constitution (As Against

the COs in Their Individual Capacities)

In his amended complaint, Glaser alleges that the COs violated his Eighth Amendment

rights through their deliberate indifference to his serious medical needs. His claim is based on their

alleged indifference to his mental health crisis and the physical injuries resulting from the assault.

(Doc. No. 11 ¶¶ 48–56.) Defendants have moved to dismiss Count Two as it pertains to Glaser’s

mental health crisis only. (Doc. No. 13, at 3–4.2)

While “the Constitution does not mandate comfortable prisons,” Rhodes v. Chapman, 452

U.S. 337, 349, 101 S. Ct. 2392, 2400, 69 L. Ed. 2d 59 (1981), the Eighth Amendment’s guard

2 All page number references herein are to the consecutive page numbers applied to individual documents by the

Court’s electronic filing system.

against cruel and unusual punishments imposes duties on prisons officials to “provide humane

conditions of confinement . . . ensure that inmates receive adequate food, clothing, shelter, and

medical care, and . . . ‘take reasonable measures to guarantee the safety of the inmates[.]’” Farmer

v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Hudson v.

Palmer, 468 U.S. 517, 526–27, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). Thus, “[t]he Eighth

Amendment forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ on an

inmate by acting with ‘deliberate indifference’ toward the inmate’s serious medical needs.”

Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429

U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). “Prison officials’ deliberate indifference

violates these rights ‘[w]hen the indifference is manifested by . . . prison guards in intentionally

denying or delaying access to medical care . . .’ for a serious medical need.” Id. (alterations in

original) (quoting Estelle, 429 U.S. at 104).

To establish a deliberate indifference claim against a prison official for the denial of

medical care, a plaintiff must satisfy a two-step framework, which includes an objective and

subjective component. Reilly v. Vadlamudi, 680 F.3d 617, 623–24 (6th Cir. 2012) (citing Wilson

v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991)); see also Blackmore, 390

F.3d at 895). First, under the objective component, the plaintiff must “establish the existence of a

sufficiently serious medical need.” Reilly, 680 F.3d at 624 (internal quotation marks omitted). “[A]

medical need is objectively serious if it is ‘one that has been 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.’” Blackmore, 390 F.3d at 897 (emphasis omitted) (quoting Gaudreault v.

Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990) (further citations omitted)). Second, under the

subjective component, the plaintiff must show that the prison official had “‘a sufficiently culpable

state of mind[]’” in denying medical care. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)

(citing Farmer, 511 U.S. at 834). This subjective component “should be determined in light of the

prison authorities’ current attitudes and conduct[.]” Helling v. McKinney, 509 U.S. 25, 36, 113 S.

Ct. 2475, 125 L. Ed. 2d 22 (1993). A plaintiff must show that the prison official was aware of facts

from which the inference could be drawn that a substantial risk of serious harm existed and ignored

that risk. Farmer, 511 U.S. at 837. This is a question of fact “and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that the risk was obvious.” Street v.

Corr. Corp. of Am., 102 F.3d 810, 815–16 (6th Cir. 1996) (quoting Farmer, 511 U.S. at 842).

As to the objective component, Glaser alleges that he “suffers from mental health

complications, including but not limited to anxiety.” (Doc. No. 11 ¶ 129.) The parties do not

dispute that Glaser alleges he experienced an anxiety attack (see Doc. No. 13, at 4), but neither

party has cited any case law discussing whether an anxiety attack is a “sufficiently serious” medical

need for Eighth Amendment purposes. It appears from the Court’s own research that other courts

to consider the issue have found mental health issues, including severe anxiety,3 can rise to the

level of a “sufficiently serious” medical need for Eighth Amendment purposes. See, e.g., Comstock

v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (“We have held that a prisoner’s psychological

needs may constitute serious medical needs . . . .” (internal quotation marks and citation omitted));

Zimmerman v. Burge, No. 9:06-cv-176, 2009 WL 3111429, at *8 (N.D.N.Y. Sept. 24, 2009)

(collecting cases related to anxiety).

3 The Court acknowledges that Glaser did not allege he suffers from “severe anxiety” in name, but the Court infers

that a person who suffers from anxiety and experiences an anxiety attack, probably suffers from severe anxiety. See

Anxiety Disorders, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/anxiety/symptoms-causes/syc-

20350961 (last visited Mar. 8, 2023) (“Experiencing occasional anxiety is a normal part of life. However, people with

anxiety disorders frequently have intense, excessive and persistent worry and fear about everyday situations. Often,

anxiety disorders involve repeated episodes of sudden feelings of intense anxiety and fear or terror that reach a peak

within minutes (panic attacks).”).

While Glaser did not allege that a physician ever diagnosed him with anxiety or that his

anxiety attack manifested with physical symptoms, Glaser did allege that he suffers from anxiety

(Doc. No. 11 ¶ 129) and that he told CO Smith he was experiencing an anxiety attack when CO

Smith first entered his cell. (Id. ¶ 22.) At this stage of the proceedings, without any guidance from

Sixth Circuit case law, the Court turns to Rule 8’s liberal pleading standard. The Court finds that

it is at least plausible that someone who suffers from anxiety, who explicitly tells a prison official

that they are suffering from an anxiety attack, might have alleged a sufficiently serious medical

need. Moreover, it is plausible that even a lay person would easily recognize that medical attention

is required to address such an anxiety attack. Guglielmoni v. Alexander, 583 F. Supp. 821, 826 (D.

Conn. 1984) (“Treatment of mental disorders of mentally disturbed inmates is . . . a ‘serious

medical need’ under Estelle[.]”).

Turning to the subjective component, Glaser alleges that, after he told CO Smith that he

was experiencing a panic attack, CO Smith left Glaser’s cell and returned with the other COs.

Rather than offer medical assistance or otherwise attempt to mitigate harm to Glaser, CO Smith

and the other COs assaulted Glaser and performed a strip search. (Doc. No. 11 ¶¶ 22–24.) After

the search was completed, none of the COs sought medical assistance for Glaser, who alleges he

was obviously physically injured and now suffering from a worsened mental health crisis. (Id. ¶¶

28, 31–35.)

Glaser does not allege that he ever told any of the COs (other than CO Smith) that he was

suffering from a panic attack. Nor does Glaser allege that he was exhibiting physical symptoms

that would make it obvious he was suffering from a panic attack either when the COs entered his

cell or after they left his cell. In fact, Glaser alleges that his back was turned to the COs when they

entered his cell together, which, if anything, rebuts any plausible inference that the COs could

readily determine at that time that Glaser was suffering an anxiety attack without any other

information. (See id. ¶ 24.) Thus, as alleged by Glaser, CO Gorby, CO Carter, and CO Does could

not have had the state of mind of deliberate indifference to his mental health crisis because there

was nothing to make them aware that it was occurring. Accordingly, Glaser’s claim of deliberate

indifference as to his mental health crisis must be dismissed against CO Gorby, CO Carter, and

CO Does for failure to state a claim. See Winkler v. Madison Cnty., 893 F.3d 877, 891 (6th Cir.

2018) (“[T]he subjective component of a deliberate indifference claim must be addressed for each

officer individually. So the evidence must show that the specific individual was aware of facts

from which he or she could infer a substantial risk of serious harm.” (internal quotation marks and

citations omitted)).

As to CO Smith, Glaser alleges that he put CO Smith on explicit notice that Glaser was

experiencing an anxiety attack. (Doc. No. 11 ¶ 22.) At that point, CO Smith made the decision that

Glaser’s condition did not require medical attention. As alleged by Glaser, instead of seeking

medical assistance for Glaser’s mental health needs, CO Smith recruited other COs to assist him

in conducting a strip search of Glaser. (See id. ¶¶ 23–24.) Even after the strip search was conducted,

CO Smith did not seek medical assistance for Glaser’s mental health needs. (See id. ¶¶ 31–35.)

Whether Glaser’s condition did in fact require medical attention is not for the Court to decide at

this juncture. Nor is it for the Court to decide right now whether CO Smith’s decision to involve

other COs rather than medical professionals amounts to deliberate indifference. All that matters

for Glaser’s claim against CO Smith to survive the motion to dismiss is that Glaser alleged facts

to at least plausibly suggest that he was suffering from a serious medical condition—he did so

allege—and that CO Smith exhibited deliberate indifference to that serious medical condition—

he did so allege. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317 (10th Cir. 2002 (“[The]

allegation that [appellant] twice told Officer King that he was having a panic attack, coupled with

Officer King’s admission that [a]ppellant mentioned prior health problems, together signify that

Officer King may have known of—and disregarded—an excessive risk to [a]ppellant’s health.”

(emphasis omitted)). Accordingly, defendants’ motion to dismiss Count Two of the complaint as

to Glaser’s mental health needs is denied as to CO Smith but granted as to CO Gorby, CO Carter,

and CO Does.

B. Count Five: Spoliation of Evidence (As Against All Defendants)

Defendants contend that Glaser’s claim of spoliation of evidence must be dismissed

because it amounts to “nothing more than threadbare recitals of the elements of the cause of action,

which is insufficient to state a claim for relief.” (Doc. No. 13, at 4 (citing Iqbal, 556 U.S. at 678

(further citation omitted)).) This Court agrees.

To state a plausible claim of spoliation of evidence under Ohio tort law, a plaintiff must

allege (1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of

defendant that litigation exists or is probable; (3) willful destruction of evidence by defendant

designed to disrupt the plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages

proximately caused by the defendant’s acts. Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038

(Ohio 1993).

Glaser’s allegations surrounding the alleged spoliation of evidence are as follows:

80. The [d]efendants knew of pending or probable litigation involving Mr. Glaser.

81. Mr. Glaser requested evidence of [the COs] assault and battery and denial of

medical benefits.

82. Defendants failed to provide Mr. Glaser with evidence of [the COs] assault and

battery and denial of medical benefits.

83. Defendants reported the lack of video evidence of the assault on Mr. Glaser.

84. Upon information and belief, [d]efendants willfully destroyed evidence to

disrupt Mr. Glaser’s case.

85. Defendants’ destruction of evidence disrupts Mr. Glaser’s case.

(Doc. No. 11 ¶¶ 81–85 (citations omitted)).

Glaser has failed to allege sufficient facts to suggest a plausible claim against any

defendant. Notably, Glaser does not allege which defendant allegedly destroyed undefined

“evidence.” See Rodriguez v. Providence Cmty. Corr., Inc., 191 F. Supp. 3d 758, 773 (M.D. Tenn.

2016) (“A complaint that fails to impute concrete acts to specific litigants, fails to state a plausible

claim.” (quotation marks and citations omitted)). Further, besides one reference to “video

evidence,” Glaser does not allege what kind of evidence was allegedly destroyed. And as to “video

evidence,” Glaser does not allege that any video evidence ever existed in the first instance. What

he does allege is that defendants reported the lack of such evidence. Although one might be

tempted to assume there would have been video surveillance in a correctional setting, the Court is

“not compel[ed] . . . to conjure up unpleaded facts to support conclusory allegations[,] Perry v.

United Parcel Serv., 90 F. App’x 860, 861 (6th Cir. 2004), especially where, as here, even the

limited facts alleged are untethered to any particular defendant(s). For these reasons, defendants’

motion to dismiss Glaser’s Count Five for spoliation of evidence is granted and this claim is

dismissed as a matter of law. Cf. Atwood v. UC Health, No. 1:16-cv-593, 2018 WL 4110862, at

*4 (S.D. Ohio Aug. 29, 2018) (allowing claim to proceed where plaintiff identified the type of

evidence destroyed and which defendant allegedly destroyed it).

C. Count Six: Failure to Intervene (As Against CoreCivic)

CoreCivic contends that Glaser cannot maintain a claim against it for failure to intervene

to prevent violation of his Eighth Amendment rights because Glaser has failed to allege any facts

to support said claim. (Doc. No. 13, at 5.) This Court agrees.

To plead a plausible failure to intervene claim against an officer, a plaintiff must establish

that the defendant (1) observed or had reason to know that excessive force would be or was being

used, and (2) had both the opportunity and the means to prevent the harm from occurring. Crawford

v. Geiger, 996 F. Supp. 2d 603, 613–14 (N.D. Ohio 2014) (quoting Turner v. Scott, 119 F.3d 425,

429 (6th Cir. 1997)). But to plead a plausible Section 1983 claim against that officer’s employer

based on the officer’s failure to intervene, a plaintiff must allege sufficient facts to suggest a direct

causal link between the employer’s policy or custom and the officer’s failure to intervene. See,

e.g., Bowers v. Power, No. 3:17-cv-1599, 2018 WL 1794730, at *7 (M.D. Tenn. Apr. 16, 2018)

(liability for failure to protect cannot be based on a theory of respondeat superior but only where

the employer’s policies “were shown to be the ‘moving force’ behind the [p]laintiff’s injury[.]”

(citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)).

The entirety of Glaser’s failure to intervene claim against CoreCivic is comprised of one

paragraph in his amended complaint:

95. Upon information and belief, CoreCivic had reason to know that excessive force

was being inflicted upon Mr. Glaser by CoreCivic employees. CoreCivic had the

opportunity and the means to prevent this harm from happening.

(Doc. No. 11 ¶ 95.) Glaser has clearly failed to allege sufficient facts suggesting a plausible failure

to intervene claim against CoreCivic. Glaser’s amended complaint merely recites the elements of

a prime facie failure to intervene claim against an officer without mentioning any facts relevant to

CoreCivic or any of its customs or policies. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” (quoting

Twombly, 550 U.S. 555)). As such, Glaser’s failure to intervene claim against CoreCivic is

dismissed as a matter of law.4

D. Count Seven: Conspiracy to Deprive and Interfere with Glaser’s Civil Rights

Under 42 U.S.C. § 1985(3) (As Against All Defendants)

Glaser’s Section 1985(3) conspiracy claim is “based on his status as an incarcerated

individual with a mental disability.” (Doc. No. 14, at 4.) Defendants contend that Glaser’s Section

1985(3) claim must be dismissed because (1) incarcerated individuals with a mental disability is

not a cognizable class and (2) even if it were, Glaser did not allege any facts to suggest he was

discriminated against based on that membership. (Doc. No. 13, at 6–7.) Citing a later-rejected case

from the Eastern District of New York, Glaser seems to suggest that incarcerated persons with a

mental disability can be a cognizable class for Section 1985(3) purposes. (Doc. No. 14, at 4

(quoting Selzer v. Berkowitz, 459 F. Supp. 347, 350 (E.D.N.Y. 1978) (collecting cases), ruling

rejected in Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (“[Plaintiffs] invite us to

hold that, in section 1985 cases, the racial or class-based animus requirement does not apply to

claims of conspiracy under color of state law. We decline to do so and reject the holding in Selzer

that racial or class-based animus need not be established in such cases.”)).) Defendants insist that

only classes of persons afforded heighted constitutional protection under the Fourteenth

Amendment (i.e., classes based on race, ethnic origin, sex, religion, or political loyalty) are

cognizable classes for Section 1985(3) purposes. (Doc. No. 13, at 6 (citing among authority Hale

v. Randolph, No. 1:02-cv-334, 2004 WL 1854179, at *6 (E.D. Tenn. Jan. 30, 2004)). This Court

and controlling Sixth Circuit case law agree with the defendants.

4 To the extent Glaser is alleging that CoreCivic failed to train its employees to intervene or to supervise its employees

by intervening, these Monell claim theories are discussed infra.

To plead a violation of Section 1985, a plaintiff must allege that the defendants (1)

conspired together, (2) for the purpose of depriving, directly or indirectly, a person or class of

persons of the equal protection of the laws, (3) and committed an act in furtherance of the

conspiracy, (4) which caused injury to person or property, or a deprivation of any right or privilege

of a citizen of the United States, and (5) and that the conspiracy was motivated by racial, or other

class-based, invidiously discriminatory animus. Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir.

1999). In Griffin v. Breckenridge, 403 U.S. 88, 101–02, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971),

the Supreme Court noted that Section 1985(3) was not “intended to apply to all tortious,

conspiratorial interferences with the rights of others” and held that the language in Section 1985(3)

“requiring intent to deprive of equal protection, or equal privileges and immunities, means that

there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action.” Although the Supreme Court has explicitly refrained from

deciding whether invidious discrimination based on something besides race would be actionable

under Section 1985(3), the Sixth Circuit has repeatedly held that Ҥ 1985(3) only covers

conspiracies against: 1) classes who receive heightened protection under the Equal Protection

Clause; and 2) ‘those individuals who join together as a class for the purpose of asserting certain

fundamental rights.’” Bartell v. Lohiser, 215 F.3d 550, 560 (6th Cir. 2000) (quoting Browder v.

Tipton, 630 F.2d 1149, 1150 (6th Cir. 1980)). Neither incarcerated persons nor persons with mental

disability are classes of persons who are afforded heightened protection under the Equal Protection

Clause. To be sure, the Sixth Circuit has specifically held that discrimination based on mental

disabilities and incarceration are not actionable under § 1985(3). Id. at 559 (“[Plaintiff] has no

actionable claim under § 1985(3) because it does not cover claims based on disability-based

discrimination or animus.”); Rose v. Leaver, 35 F. App’x 191, 193 (6th Cir. 2002) (“[P]risoners

are not a protected class for the purposes of § 1985(3).”). As such, Glaser has failed to allege his

membership in a cognizable class for Section 1985(3) purposes and his claim must be dismissed

as a matter of law.

Even if Glaser had alleged his membership in a cognizable class, he has failed to allege

that defendants discriminated against him because of that membership. “It is well-settled that

conspiracy claims must be pled with some degree of specificity and that vague and conclusory

allegations unsupported by material facts will not be sufficient to state such a claim.” Farmer v.

Reece, No. 3:19-cv-1189, 2020 WL 32512, at *2 (N.D. Ohio Jan. 2, 2020) (citations omitted). At

most, Glaser alleges “the actions of [the COs], were motivated and intended to deprive [] Glaser

of the equal protection of the laws.” (Doc. No. 11 ¶ 99.) Glaser never alleges any action was

motivated by his membership in a class of incarcerated persons with a mental disability.

For these reasons, defendants’ motion to dismiss Count Seven of Glaser’s complaint is

granted and Glaser’s claim under Section 1985(3) is dismissed as against all defendants.

E. Count Ten: Discrimination on the Basis of Disability in Violation of the Americans

with Disabilities Act and the Rehabilitation Act (As Against All Defendants)

In Count Ten of his amended complaint, Glaser brings claims under Section 503 of the

Rehabilitation Act (“RA”), Title II of the Americans with Disabilities Act (“ADA”), and the

Fourteenth Amendment as against all defendants. Defendants have moved to dismiss Glaser’s

claims brought under the RA and ADA. (Doc. No. 13, at 7.) The Court evaluates together the

sufficiency of Glaser’s ADA and RA allegations because “the reach and requirements of both

statutes are precisely the same.” S.S. v. E. Ky. Univ., 532 F.3d 445, 452–53 (6th Cir. 2008) (citation

omitted).

As an initial matter, these claims must be dismissed against the COs and Warden Bobby in

their individual capacities because individuals are not subject to suit under either the RA or the

ADA. See, e.g., Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009) (“Title II of the ADA does

not, however, provide for suit against a public official acting in his individual capacity.”);

Bevington v. Ohio Univ., 93 F. App’x 748, 750 (6th Cir. 2004) (“[Plaintiff] may not maintain an

action under the RA against the individuals identified in his complaint because the RA does not

impose liability upon individuals.”).

To make out a claim against CoreCivic under either the RA or the ADA, Glaser must show:

(1) [Glaser] is a “handicapped person” under the Act; (2) [Glaser] is “otherwise

qualified” for participation in the program; (3) [Glaser] is being excluded from

participation in, or being denied the benefits of, or being subjected to discrimination

under the program solely by reason of his handicap; and (4) [t]he relevant program

or activity is receiving Federal financial assistance.

Campbell v. Bd. of Educ. of the Centerline Sch. Dist., 58 F. App’x 162, 165 (6th Cir. 2003) (quoting

Doherty v. S. Coll. of Optometry, 862 F.2d 570, 573 (6th Cir. 1988)). Glaser alleges that he suffers

from mental health complications, including anxiety, which for purposes of this analysis the Court

will assume qualifies Glaser as a “handicapped person” under the RA and ADA. (See Doc. No. 11

¶ 129.) But Glaser’s RA and ADA claims against CoreCivic fail and must be dismissed because

Glaser has not alleged any facts to suggest that defendants discriminated against him because of

his disability.

Glaser alleges that defendants failed to provide reasonable accommodations for his

disability but the only “reasonable accommodation” allegedly denied is “access to medical and

other appropriate services” while incarcerated. (Id. ¶ 132.) To be sure, courts routinely dismiss RA

and ADA claims that—like Glaser’s—allege inadequate medical treatment but do not allege that

the inmate was treated differently because of his or her disability. See, e.g., Bonds v. S. Health

Partners, Inc., No. 2:15-cv-209, 2016 WL 1394528, at *6 (E.D. Ky. Apr. 6, 2016) (“[T]he ADA

and Rehabilitation Act . . . afford disabled persons legal rights regarding access to programs and

activities enjoyed by all, but these statutes do not provide a general federal cause of action to

challenge the sufficiency of the medical treatment of their underlying disabilities.”); Carrion v.

Wilkinson, 309 F. Supp. 2d 1007, 1016 (N.D. Ohio 2004) (“[Plaintiff] failed to allege that the

defendants denied him the benefits of any services, programs, or activities provided for other non-

disabled inmates, or that [the defendants] subjected him to discrimination because of his diabetes.

Instead, he claims that he was denied a diabetic diet . . . [but this] is not the type of claim that the

ADA and Rehabilitation Act were intended to cover.” (internal quotation marks and brackets

omitted)); Vick v. Core Civic, 329 F. Supp. 3d 426, 444 (M.D. Tenn. 2018) (“Simply stated, the

bare allegation of inadequate medical care, even when made by a person with a serious disability,

does not state a claim under the Rehabilitation Act. Put another way, the [p]laintiff is claiming that

he was not properly treated for his diabetes, not that he was mistreated because of his diabetes.”).

For these reasons, Glaser’s RA and ADA claims against the defendants are dismissed as a

matter of law.

F. Count Eleven: Supervisory Liability for Violations of Civil Rights Pursuant to 42

U.S.C. § 1983 (As Against CoreCivic and Warden Bobby)5

Glaser brings claims of supervisory liability under Section 1983 against CoreCivic and

Warden Bobby. It is not clear whether Glaser brings his claim against Warden Bobby in his

individual or official capacity. Any claim against Warden Bobby in his official capacity is treated

as a claim against CoreCivic. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301

(1991). Therefore, the Court will first address the Section 1983 claim as against Warden Bobby in

his individual capacity and then address the claim as against CoreCivic.

5 Defendants also ask for this claim to be dismissed against NEOCC. The Court acknowledges that Glaser’s complaint

mentions NEOCC in its Count Eleven but this seems to be an oversight because NEOCC is not named as a defendant

in Glaser’s amended complaint. (See Doc. No. 11.) Nevertheless, to the extent Glaser’s amended complaint raises any

claim against NEOCC, those claims are dismissed because NEOCC is a non-jural entity that is not subject to suit.

E.g., De La Torre v. Corr. Corp. of Am., 4:16-cv-2004, 2016 WL 6893279, at *6 (N.D. Ohio Nov. 23, 2016).

1. Warden Bobby

Glaser alleges that Warden Bobby supervised NEOCC at all relevant times. (Doc. No. 11

¶ 13.) It is well established that Glaser cannot maintain a Section 1983 claim against Warden

Bobby as a supervisor based on a respondent superior theory. Instead, Glaser must allege that

Warden Bobby’s own individual actions violated Glaser’s constitutional rights, either through

Warden Bobby’s personal involvement in the Incident or by acquiescing in his subordinate’s

unconstitutional conduct related to the Incident. Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 81

(6th Cir. 1995) (plaintiff must allege facts showing that the defendant-supervisor participated,

condoned, encouraged, or knowingly acquiesced in misconduct to establish liability). This, Glaser

has failed to do.

Glaser’s Section 1983 claim is based on the Incident—a single event—alone. Glaser does

not allege that Warden Bobby was present for the Incident. Glaser does not allege that Warden

Bobby was even made aware of the Incident such that he could have investigated the Incident, but

did not. Glaser does not allege a single fact to suggest that Warden Bobby played any role in the

Incident giving rise to this suit, besides alleging that Warden Bobby was the supervisor of the

NEOCC. (See Doc. No. 11 ¶ 13.) Nor does Glaser allege that there were any previous incidents

similar to the Incident, which would have put Warden Bobby on notice of his subordinate’s actions.

All Glaser provides are vague and conclusory allegations that “[d]efendants condoned,

encouraged, or participated in the alleged conduct.” (Doc. No. 11 ¶ 146.) Not only are these

allegations impermissibly conclusory, but Glaser’s reference to a multi-headed “[d]efendants” is

insufficient to plead a plausible Section 1983 claim against Warden Bobby. See Heyne v. Metro.

Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011) (“This Court has consistently held that

damage claims against government officials arising from alleged violations of constitutional rights

must allege, with particularity, facts that demonstrate what each defendant did to violate the

asserted constitutional right.” (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))); see

also Rodriguez, 191 F. Supp. 3d at 773 (“A complaint that fails to impute concrete acts to specific

litigants, fails to state a plausible claim.” (quotation marks and citations omitted)). Because Glaser

has failed to plead even a single fact that would suggest a plausible Section 1983 claim against

Warden Bobby in his individual capacity, this claim is dismissed as a matter of law.

2. CoreCivic

CoreCivic, as a private prison, is a “person” subject to suit for purposes of a Section 1983

claim. Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996); see also Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Courts in the Sixth Circuit

engage in a two-prong inquiry when considering a municipal-liability claim. First, the court must

determine whether the plaintiff has asserted the deprivation of a right guaranteed by the

Constitution or federal law. Cash v. Hamilton Cnty. Dep’t of Adult Prob., 388 F.3d 539, 542 (6th

Cir. 2004). Second, the court must determine whether the alleged deprivation was caused by the

defendants acting under color of state law. Id.

The Court will assume for purposes of its analysis that Glaser has sufficiently alleged the

deprivation of a right guaranteed by the Constitution or federal law. The Court will instead focus

whether Glaser was deprived this right because of a defendant acting under color of state law.

Cash, 388 F.3d at 542. Because CoreCivic cannot be held liable under Section 1983 on a

respondeat superior theory, it is liable under Section 1983 for a defendant acting under color of

state law “only if the challenged conduct occurs pursuant to [its] ‘official policy,’ such that [its]

promulgation or adoption of the policy can be said to have ‘caused one of its employees to violate

the plaintiff’s constitutional rights.’” D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014)

(brackets omitted) (quoting Monell, 436 U.S. at 692). The “touchstone,” then, is an “official

policy” that causes the alleged constitutional violation. Monell, 436 U.S. at 690–91. A plaintiff

can make a showing of an illegal policy or custom by demonstrating either: (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).

The allegations in the amended complaint do not point to any official policy or legislative

enactment by CoreCivic that caused Glaser’s claimed constitutional injuries. Instead, Glaser relies

on the other three theories of Monell liability: ratification, inadequate training/supervision, and a

custom of tolerance. (See Doc. No. 11 ¶¶ 145–50.)

a. Ratification by a Final Decision-Maker

The ratification theory of municipal liability does not require proof of a pattern or custom.

See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)

rev’d on other grounds, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). Instead,

ratification of a single violative act is enough for municipal liability to attach if an official acting

with the final decision-making authority ratifies the unconstitutional acts of its employees by

“failing to meaningfully investigate and punish allegations of unconstitutional conduct.” Wright v.

City of Euclid, 962 F.3d 852, 882 (6th Cir. 2020); see also Wilson v. Louisville-Jefferson Cnty.

Metro Gov’t, No. 3:19-cv-739, 2020 WL 981717, at *2 (W.D. Ky. Feb. 28, 2020) (“[T]he Sixth

Circuit has held that municipal liability may attach when an official with final decision-making

authority and a duty to know and act upon unconstitutional conduct fails to investigate or correct

the unconstitutional conduct.” (citing Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985), and

Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989))).

Glaser has not alleged any person with final decision-making authority was involved in or

aware of the Incident. Even assuming Warden Bobby qualifies as a final decision maker, as

discussed above, Glaser does not allege that Warden Bobby played any role in the Incident. Glaser

never alleges that Warden Bobby failed to investigate the Incident. Nor does Glaser allege that

Warden Bobby was even aware of the Incident. Without these key factual allegations, Glaser has

failed to allege a plausible Monell claim based on ratification by a decision maker.

b. Failure to train or supervise.

A Monell claim based on a failure-to-train theory requires a showing of that (1) CoreCivic’s

training program was inadequate for the tasks that employees must perform; (2) the inadequacy

was the result of CoreCivic’s deliberate indifference; and (3) the inadequacy was closely related

to or actually caused the injury. Jackson v. City of Cleveland, 925 F.3d 793, 834 (6th Cir. 2019)

(citations and quotation marks omitted). To establish liability based on a policy of inadequate

training, there must be a “history of misconduct that created ‘notice that the training in this

particular area was deficient and likely to cause injury.’” Fletcher-Hope v. Louisville-Jefferson

Cnty. Metro Gov’t, No. 3:18-cv-469, 2019 WL 498853, at *3 (W.D. Ky. Feb. 8, 2019) (quoting

Burgess, 735 F.3d at 478).

Glaser alleges that CoreCivic claims to have no training manuals related to the violation of

his constitutional rights (see Doc. No. 11 ¶ 143), but this alone is insufficient to establish a

plausible claim based on a failure-to-train or supervise theory, because Glaser has not alleged any

other instances of misconduct that would amount to a clear pattern of illegal activity. And because

Glaser has not alleged any other instances of similar misconduct, Glaser has failed to allege that

CoreCivic was on notice that its training in this particular area was deficient or likely to cause

injury. See D’Ambrosio, 747 F.3d at 388 (holding that a county’s knowledge of only three prior

instances could not establish notice of habitually unconstitutional conduct in support of a failure-

to-train claim). For these reasons, Glaser cannot maintain a Monell claim against CoreCivic based

on a failure-to-train or supervise theory.

c. Custom of Tolerance or Acquiescence.

To state a municipal liability claim under an “inaction” theory, Glaser must establish: (1)

the existence of a clear and persistent pattern of violating constitutional rights by CoreCivic’s

employees; (2) notice or constructive notice on the part of CorerCivic; (3) CoreCivic’s tacit

approval of the unconstitutional conduct, such that its deliberate indifference in its failure to act

can be said to amount to an official policy of inaction; and (4) that CoreCivic’s custom was the

“moving force” or direct causal link in the constitutional deprivation. Arendale, 519 F.3d at 599–

600. Further, the evidence must demonstrate more than just “a collection of sloppy, or even

reckless, oversights[.]” Doe v. Claiborne Cnty., 103 F.3d 495, 508 (6th Cir. 1996). Instead, the

record must show that CoreCivic “consciously never acted when confronted with its employees’

egregious and obviously unconstitutional conduct.” Id.

As mentioned above, Glaser’s complaint mentions only one incident of constitutional

rights being violated, his own. As such, Glaser has failed to allege any clear and persistent pattern

of CoreCivic’s employees violating constitutional rights. Alsaada v. City of Columbus, 536 F.

Supp. 3d 216, 272 (S.D. Ohio 2021) (“One instance of potential misconduct is insufficient to show

a clear and persistent pattern of constitutional violations.” (citing Stewart v. City of Memphis, 788

F. App’x 341, 347 (6th Cir. 2019))). Further, Glaser has failed to allege any facts that suggest

CoreCivic was on notice of a pattern of such unconstitutional conduct. For this reason, Glaser

cannot maintain a Monell claim against CoreCivic based on a theory of custom of tolerance or

acquiescence.

For all the aforementioned reasons, Glaser’s Monell claim against CoreCivic fails as a

matter of law and must be dismissed.

G. Claims Against CO Does

Defendants also ask this Court to dismiss all the claims (not dismissed already) that Glaser

alleges against the CO Does. (Doc. No. 13, at 15.) Defendants are correct that the use of “doe

defendants” is disfavored in federal court but, “it is permissible when the identity of the alleged

defendant is not known at the time the complaint is filed and plaintiff could identify defendant

through discovery.” See Robinson v. Doe, No. C-1-07-729, 2009 WL 650383, at *2 (S.D. Ohio

Mar. 10, 2009). This seems to be the case here. Glaser represents in his opposition to defendants’

motion to dismiss that he requested information concerning the COs involved in the strip search

but has not been provided any. (Doc. No. 14, at 7–8.) It is possible that discovery will yield further

identities of COs involved. Thus, at this stage, the Court will not dismiss any additional claims

against the CO Does.6

6 Defendants suggest that Glaser could amend his complaint (after fact discovery begins) to add the names of any

additional COs identified as involved in his claims. This is precisely what Glaser should do as soon as he identifies

the CO Does. And if discovery establishes that there were no additional COs involved, or Glaser fails to identify the

CO Does, then the CO Does will be dismissed.

IV. CONCLUSION

For the reasons set forth herein, defendants’ motion to dismiss is granted in part and denied

in part. The following challenged claims are dismissed:

e Count Two as to Glaser’s mental health as against CO Gorby, CO Carter, and CO Does,

e Count Five in its entirety,

e Count Six as against CoreCivic,

e Count Seven in its entirety,

e Count Ten in its entirety, and

e Count Eleven as against CoreCivic and Warden Bobby.

The following challenged claims will proceed:

e Count Two as to CO Smith,

e Count Six as to the COs and any CO Does identified during fact discovery, and

e Count Eleven as to any CO Does identified during fact discovery.

IT IS SO ORDERED.

Dated: June 16, 2023 ae ©

HONORABLE SARA LIOI

UNITED STATES DISTRICT COURT

CHIEF JUDGE

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