# Fekety v. Wellpath

> District Court, N.D. Ohio · October 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10372655

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 12, 2023
- **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

LINDA FEKETY, as Administratrix )
to the Estate of James Kennedy, III, )
) CASE NO. 4:22-cv-1667
Plaintiff, )
)
v. ) JUDGE BRIDGET MEEHAN BRENNAN
)
)
WELLPATH, et al., ) MEMORANDUM OPINION
) AND ORDER
Defendants. )

Before the Court is a motion to dismiss the Complaint filed by two of the named
defendants, Mahoning County and Deputy Jacob Hocevar. (Doc. No. 9.) Plaintiff filed a brief in
opposition (Doc. No. 11), and the moving defendants replied (Doc. No. 12). For the reasons that
follow, the motion is GRANTED.
I. Facts Alleged in the Complaint
The following allegations are taken as true for purposes of resolving a motion to dismiss.
On or around October 22, 2019, the decedent James Kennedy, III (“Kennedy”) was
booked into the Mahoning County Jail (“MCJ”) on a charge of parole violation. (Doc. No. 1 at
¶¶ 3, 11.) Sometime during his approximately ten-month incarceration at MCJ, Kennedy
developed a severe case of acute pancreatitis. (See id. ¶¶ 11, 14.)1
As Kennedy’s condition worsened while he was an inmate at the Jail, the
progress of his disease was overtly apparent from Kennedy’s overall appearance,

1 “Acute pancreatitis is ‘uncommon.’” United States v. Hopkins, 594 F. Supp. 3d 852, 859 (E.D.
Mich. 2022) (quoting medical literature), aff’d, No. 22-1170, 2022 WL 18955859 (6th Cir. Oct.
6, 2022). The Complaint does not allege that Kennedy had a related pre-existing condition or
that he suffered from chronic pancreatitis.
and complaints that Kennedy voiced to the Jail staff and Jail medical staff. Also,
as Kennedy’s condition deteriorated, other inmates commented to Corrections
Officers and other members of the Jail staff and the Jail medical staff that
something was seriously wrong with Kennedy.
(Id. ¶ 11.)
It is alleged that MJC personnel failed to pay “minimal attention to the obvious
deterioration of Kennedy’s condition, the complaints made by Kennedy, and the reports about
Kennedy’s condition from other inmates[.]” (Id. ¶ 12.) Had they done so, “it would have been
clear to those members of the Jail staff and Jail medical staff that Kennedy needed substantial
and immediate medical attention. The Jail staff and Jail medical staff did not provide or secure
obviously needed medical attention for Kennedy.” (Id.)
The Complaint then alleges that defendants “knew or should have known that Kennedy
was in acute medical distress for an extended period of time [,] that Kennedy was in dire need of
proper medical attention . . . [and] that Kennedy would suffer serious health consequences and
likely death.” (Id. ¶ 13.)
On or around August 26, 2020, MJC transported Kennedy to a local hospital. It is
alleged that his pancreatitis already “had become[] so advanced that there was little chance that
Kennedy would survive. On or about September 27, 2020, while still a patient . . . Kennedy
died. The cause of Kennedy’s death was acute pancreatitis[.]” (Id. ¶ 14.)
On September 19, 2022, the administrator of Kennedy’s estate filed suit in this Court.

The Complaint alleges that the defendants “were deliberately indifferent to the medical needs
and welfare of Kennedy,” which resulted in his death. (Id. ¶ 15.) It is alleged that they denied
Kennedy due process – both substantive and procedural – and deprived him of his Eighth
Amendment right to be free from cruel and unusual punishment. (Id.)
II. Law and Analysis
A. Standard of Review
When addressing a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, the Court must construe the complaint in the light most favorable to the plaintiff
and accept all well-pleaded material allegations in the complaint as true. United States ex rel.
Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 914 (6th Cir. 2017) (setting forth the standard
of review for a motion to dismiss); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
sufficiency of the complaint is tested against the notice pleading requirement that a complaint
must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief[.]” Fed. R. Civ. P. 8(a)(2). Although this standard is a liberal one, a complaint must still
provide the defendant with “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true,” to state a

plausible claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
The concept of facial plausibility “does not impose a probability requirement at the
pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery
will reveal evidence [of liability].” Twombly, 550 U.S. at 556. However, “where 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.’” Iqbal,
556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). As such, the court will not permit
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements . . .” Id. at 778 (citations omitted).
If a plaintiff pleads facts that reveal a flaw in the claim or substantiate a defense, she may
plead herself out of federal court. In other words, “sometimes the allegations in the complaint
affirmatively show that the claim is [deficient or disallowed as a matter of law]. When that is the
case, as it is here, dismissing the claim under Rule 12(b)(6) is appropriate.” Cataldo v. U.S. Steel
Corp., 676 F.3d 542, 547 (6th Cir. 2012); see also Riverview Health Inst. LLC v. Med. Mut. of

Ohio, 601 F.3d 505, 512 (6th Cir. 2010); O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th
Cir. 2015) (“A complainant can plead himself out of court by including factual allegations that
establish that the plaintiff is not entitled to relief as a matter of law.”).
B. Estate Administrator Standing
“[T]he forum state’s law determines whether a § 1983 claim survives an individual’s
death.” Est. of Majors v. Gerlach, 821 F. App’x 533, 537 (6th Cir. 2020). Section 1983 claims
“are best characterized as tort actions for the recovery of damages for personal injury[.]” Cooey
v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007) (citing Wilson v. Garcia, 471 U.S. 261, 275-76

(1985)).
Ohio’s survivorship statute provides that “causes of action for . . . injuries to the person . .
. may be brought notwithstanding the death of the person entitled . . . thereto.” Ohio Rev. Code
§ 2305.21; see also Crabbs v. Scott, 880 F.3d 292, 294 (6th Cir. 2018). Accordingly, the
administrator of Kennedy’s estate may pursue Kennedy’s Section 1983 claims.
C. Timeliness of Deliberate Indifference Claim
“The statute of limitations for § 1983 claims is the relevant state’s statute of limitations
for personal-injury torts. In Ohio, a two-year statute of limitations applies to § 1983 claims.
Although the statute of limitations is determined by state law, the accrual date of a § 1983 cause

of action is a question of federal law that is not resolved by reference to state law.” Beaver St.
Invs., LLC v. Summit Cnty., Ohio, 65 F.4th 822, 826 (6th Cir. 2023) (quotations and citations
omitted). “The limitations period . . . begins to run when a plaintiff has a complete and present
cause of action[.] A complete cause of action arises when the plaintiff knows or has reason to
know of the injury which is the basis of his action.” Id. (quotations and citations omitted). The
“Court looks to what event should have alerted the typical lay person to protect his or her rights.”

Id.
The cause of action at issue here is deliberate indifference to a prisoner’s serious medical
needs. (Doc. No. 1 at ¶¶ 15, 17.) A plaintiff with such an Eighth Amendment claim must prove
both objective and subjective components. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Vinson v. Michigan Dep’t of Corr., 788 F. App’x
312, 315-16 (6th Cir. 2019). The objective inquiry goes to the nature of what has been inflicted
upon or denied to an inmate. “[T]he deprivation alleged must be, objectively, sufficiently
serious; a prison official’s act or omission must result in the denial of the minimal civilized
measure of life’s necessities. . . . [T]he inmate must show that he is incarcerated under conditions

posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834 (quotations and citations
omitted).
The subjective inquiry examines whether each defendant has a “sufficiently culpable
state of mind.” Id. “[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless 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.” Id. at 837. “[A]n official’s failure to alleviate a significant risk that he should
have perceived but did not . . . cannot under our cases be condemned as the infliction of
punishment.” Id. at 838. A defendant necessarily must be aware of a risk in order to be
deliberately indifference to it. See id. at 840-41. “Mere negligence in identifying or treating a
medical need does not rise to the level of an Eighth Amendment violation.” Vinson, 788 F.
App’x at 316 (citing Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)).
In Gerlach, the prisoner “was aware of his injury – Defendants’ failure to treat him and

the resulting exacerbation of his MS – well before the time of his death. As shown by his
various complaints and requests for treatment to prison medical staff, [the prisoner in Gerlach]
knew of Defendants’ refusal to treat his illness and of the resulting need to ‘protect his . . .
rights.’” 821 F. App’x at 538. The Sixth Circuit concluded in Gerlach that the claim accrued
while the inmate was still alive and complaining to prison officials that his condition was
worsening and required treatment. See id. (citing Trzebuckowski v. City of Cleveland, 319 F.3d
853, 856 (6th Cir. 2003) (“[W]e look to the event that should have alerted the typical lay person
to protect his or her rights.”)).
Here, Kennedy was still alive when “the progress of his disease was overtly apparent

from Kennedy’s overall appearance.” (Doc. No. 1 at ¶ 11.) This resulted in “complaints that
Kennedy voiced to the Jail staff and Jail medical staff.” (Id.) Not only was Defendants’
worsening condition palpable to Kennedy himself, the Complaint alleges that other inmates
commented to MJC staff that “something was seriously wrong with Kennedy.” (Id.)
Plaintiff is “entitled to bring claims that would not have been time-barred had [Kennedy]
attempted to bring them while he was alive.” Gerlach, 821 F. App’x at 537. Under Ohio law,
Kennedy (and his estate) had two years to file claims against MJC and its personnel based on
deliberate indifference to his medical condition during his incarceration at MJC. See Ohio Rev.
Code § 2305.10 (“[A]n action for bodily injury or injuring personal property shall be brought
within two years after the cause of action accrues.”); Browning v. Pendleton, 869 F.2d 989, 991
(6th Cir. 1989); Nadra v. Mbah, 893 N.E.2d 829, 835 (Ohio 2008).
Based on the pleaded facts reviewed above, a typical inmate would have been alerted to
MJC’s alleged failure to address a worsening medical condition. The “obvious deterioration” of
Kennedy’s health allegedly revealed “obviously needed medical attention for Kennedy.” (Doc.

No. 1 at ¶ 12.) This allegedly obvious injury occurred during Kennedy’s confinement at MJC.
Kennedy’s claim thus accrued by or before August 26, 2020 – the date MJC sent Kennedy to the
hospital. (See id. ¶ 14.)
The limitations period for claims against MJC personnel expired by August 26, 2022,
which was calculated from the date on which Kennedy was transferred from MJC to a local
hospital. Plaintiff’s estate did not file the Complaint until September 19, 2022. That was after
the statute of limitations had expired as to the moving defendants. For these reasons, Plaintiff’s
deliberate indifference claim under the Eighth Amendment against Defendants Mahoning
County and Deputy Hocevar is dismissed.

D. Due Process Claims
Alongside references to the Eighth Amendment, Plaintiff twice mentions deprivations of
“substantive due process of law [and] procedural due process of law.” (Id. ¶¶ 15, 17.) Under the
Fourteenth Amendment, “[n]o State shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. The due process clause has both
procedural and substantive components. See generally EJS Props., LLC v. City of Toledo, 698
F.3d 845, 855 (6th Cir. 2012).
The list of liberty interests and fundamental rights for substantive protection “is short,
and the Supreme Court has expressed very little interest in expanding it.” EJS, 698 F.3d at 860
(quoting Seal v. Morgan, 229 F.3d 567, 574-75 (6th Cir. 2000)). A court must “first carefully
define the asserted right and then ask whether it is deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed.” Id. at 860 (quotations and citations omitted). A defendant’s
alleged conduct must be so heinous and arbitrary that it can fairly be said to “shock the

conscience.” Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 725 (6th Cir. 1996).
“The touchstone of procedural due process is the fundamental requirement that an
individual be given the opportunity to be heard ‘in a meaningful manner.’” Engler v. Arnold,
209 F. Supp. 3d 988, 991 (N.D. Ohio 2016), aff’d, 862 F.3d 571 (6th Cir. 2017) (quoting
Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)). The Supreme Court has explained that
“a deprivation of a constitutionally protected property interest caused by a state employee’s
random, unauthorized conduct does not give rise to a § 1983 procedural due process claim unless
the State fails to provide an adequate post-deprivation remedy.” Zinermon v. Burch, 494 U.S.
113, 115 (1990).

Here, the moving defendants argued that “naked assertion[s] devoid of ‘further factual
enhancement’ will not survive a motion to dismiss.” (Doc. No. 9 at 74 (quoting Iqbal, 556 U.S.
at 678).)
A Complaint must contain either direct or inferential allegations respecting all
the material elements of some viable legal theory to satisfy federal notice
pleading requirements. District courts are not required to conjure up questions
never squarely presented to them or to construct full blown claims from sentence
fragments. * * * Moreover, the failure to identify a particular legal theory in
[a] complaint places an unfair burden on the Defendants to speculate on the
potential claims that Plaintiff may be raising against them and the defenses they
might assert in response to each of these possible causes of action. Even
liberally construed, the Complaint does not sufficiently state another federal
constitutional claim or claims upon which Plaintiff intends to base [t]his § 1983
action.
Lacy v. Sheldon, No. 1:10-cv-1974, 2011 WL 93719, at *3 (N.D. Ohio Jan. 11, 2011) (Sixth
Circuit citations omitted).
“The complaint is particularly important here, because substantive due process is an
undefined area where ‘guideposts for responsible decisionmaking . . . are scarce and open-ended’
. . . .” Guertin v. State, 912 F.3d 907, 946 (6th Cir. 2019) (McKeague, J., concurring) (quoting

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). Plaintiff does not articulate a
particular form of liberty interest on which to base a substantive process claim. Moreover, the
“failure to discuss more thoroughly [the] liberty interest makes it difficult to analyze whether
[Kennedy] suffered a deprivation.” EJS, 698 F.3d at 859.
Plaintiff also does not plead a post-deprivation lack of procedural opportunity to be
heard. Cf. Bazzetta v. McGinnis, 430 F.3d 795, 803 (6th Cir. 2005). For example, Plaintiff does
not plead that he filed some internal grievance regarding lack of medical care that went ignored
or unresolved. Nor does the Complaint specify procedural mechanisms for requesting medical
care at MJC or any lack thereof.

In any event, the two undeveloped references to due process cover identical ground as the
Eighth Amendment deliberate indifference claim. “Where a particular Amendment provides an
explicit textual source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due process, must be
the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994).
For these reasons, Plaintiff’s Complaint fails to state plausible claims for relief under the
Due Process Clause of the Fourteenth Amendment. The due process claims against the moving
defendants are dismissed.
E. State Law Wrongful Death
In response to the motion to dismiss, Plaintiff asserted that she pleaded “a wrongful death
claim” under Ohio law. (Doc. No. 11 at 94.) The moving defendants argue that Plaintiffs did
not plead such a claim. (Doc. No. 12 at 104-07.)

The elements of a wrongful death claim under Ohio law are: (1) death of the decedent;
(2) commencement of the action within two years thereafter; (3) a wrongful act, neglect or
default of defendant that proximately caused the death and would have entitled the decedent to
maintain an action and recover damages had he not died; (4) decedent was survived by a spouse,
children, parents or other next of kin; and (5) survivors have incurred damages as a result of the
wrongful death. Bailey v. United States, 115 F. Supp. 3d 882, 889 (N.D. Ohio 2015) (citing
Mansour v. Woo, No. 2011-A-0038, 2012 WL 1493862, *7 (Ohio Ct. App. 2012)).
The Complaint does not identify a survivor or next of kin. Plaintiff did not develop any
legal argument that an estate administrator satisfies the fourth element of the cause of action.

Moreover, Plaintiff’s allegation of subject-matter jurisdiction does not refer to supplemental
jurisdiction over a state-law claim. Rather, Plaintiff pleaded only jurisdiction over federal law
claims. (See Doc. No. 1 at ¶ 1.) Plaintiff has not filed a motion for leave to amend the
Complaint.
For these reasons, the Court concludes that Plaintiff did not plead a wrongful death claim
under Ohio law.
III. Conclusion
For the reasons above, the motion to dismiss filed by Mahoning County and Deputy
Hocevar is GRANTED. Mahoning County and Deputy Hocevar are dismissed as parties from
this case.

IT IS SO ORDERED.

Date: October 12, 2023 _______________________________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10372655. Public record. Not legal advice.