The opinion
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KARL FUGATE, Case No. 1:19-cv-30
Plaintiff, Dlott, J.
Bowman, M.J.
v.
RON ERDOS, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Karl Fugate, currently incarcerated at the Ohio State Penitentiary, filed a
civil rights complaint against officials at the institution at which he was previously
incarcerated. Pursuant to local practice, the case has been referred to the undersigned
magistrate judge.
I. Background
Upon initial screening of Plaintiff’s complaint under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1), the undersigned filed a Report and Recommendation (“R&R”) that
recommended the dismissal with prejudice of multiple claims asserted by Plaintiff. (Doc.
6, Order and R&R). The presiding district judge subsequently adopted that R&R, and
the U.S. Marshal served the complaint on Plaintiff’s behalf on five Defendants against
whom claims were permitted to proceed. (Docs. 7, 8).
On March 27, 2019, Defendants Ron Erdos, Sgt. Felts, Officer Fri, and Officer
McCoy jointly filed an answer to the complaint as well as a motion to dismiss for failure to
state a claim. (Docs. 9, 10). Due to a delay in service on the fifth Defendant, Lt. Eshem
filed a separate answer on July 17, 2019, along with a substantially identical motion to
“supplemental response” to the earlier filed motion. (Docs. 15, 24, 30).
For the reasons explained below, Defendants’ motions to dismiss should be
denied, except as to Plaintiff’s claim for injunctive relief. By separate Order filed herewith,
the undersigned has denied two related motions to strike filed by Defendants, as well as
two motions filed by Plaintiff.
II. Standard of Review
When considering a motion to dismiss under Rule 12(b)(6), the court is required to
construe the complaint in the light most favorable to the Plaintiff and to accept all well-
pleaded factual allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) and Lewis v. ACB Business Services, 135 F.3d 389, 405 (6th Cir. 1998).
A court, however, will not accept conclusions of law or unwarranted inferences which are
presented as factual allegations. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th
Cir. 1974). Instead, a complaint must contain either direct or reasonable inferential
allegations that support all material elements necessary to sustain a recovery under some
viable legal theory. Lewis v. ACB, 135 F.3d at 405 (internal citations omitted). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations omitted); Association of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007). A complaint will generally survive
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to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Reilly v. Vadlamudi, 680 F.3d 617, 622–23 (6th Cir. 2012) (quoting Ashcraft v.
Iqbal, 29 S.Ct. 1937, 1949 (2009)). By contrast, if a defendant has filed a well-supported
and meritorious motion to dismiss that clearly illustrates that the plaintiff has failed to state
a claim, the motion will be granted.
III. Analysis of Motions to Dismiss
A. Dismissal of Claims Based on Insufficiently Pleaded Capacity
As part of its initial screening under the Prison Litigation Reform Act, the Court
dismissed all claims brought by Plaintiff against the Defendants in their official capacities,
to the extent that Plaintiff seeks an award of monetary damages. (See Doc. 4 at 5, “claims
against any defendant in an official capacity must be dismissed to the extent that plaintiff
seeks monetary damages”). Defendants now argue that because the complaint fails to
specifically state whether Plaintiff is seeking to recover against them in their individual or
official capacities, this Court must assume as a matter of law that Defendants are named
solely in their official capacities. See Soper v. Hoben, 195 F.3d 845, 853, (6th Cir. 1999)
(citing Hardin v. Straub, 954 F.2d 1193, 1199 (6th Cir. 1992) and Wells v. Brown, 891
F.2d 591, 592-94 (6th Cir. 1989)). Defendants then argue that based on this Court’s prior
analysis, all of Plaintiff’s claims for damages must be dismissed under the Eleventh
Amendment.
In response to Defendants’ motion, Plaintiff explains that he intended to bring
claims against all Defendants in both their official capacities (for injunctive relief) and in
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be doing when he listed the Defendants by title and name.” (Doc. 15 at 2, emphasis
added). To the extent that Plaintiff’s original complaint was insufficiently clear, Plaintiff
seeks to supplement or amend to be “more explicit in his delegation of what capacity he
was bringing suit in….” (Doc. 15 at 3). Plaintiff further states that he is dropping his
request for injunctive relief, such that suit may proceed against all Defendants for
monetary damages “in only their individual capacity.” (Id.) Plaintiff filed an amendment
to his complaint to the same effect. (Doc. 16).
In a reply memorandum, Defendants argue that Plaintiff’s response
“acknowledges that he failed to provide the appropriate capacity and now seemingly
wants another bite of the apple….” (Doc. 19 at 2). Defendants urge this Court to reject
Plaintiff’s attempt to “amend” in order to clarify capacity, and instead to strictly construe
the allegations of the original complaint as identifying the Defendants solely in their official
capacities. (Id.)
Plaintiff filed a “supplemental memorandum” - essentially a sur-reply - that objects
to the Defendants’ characterization of his response as a concession that he improperly
pleaded capacity. The undersigned agrees with Plaintiff that Defendants go too far in
asserting that Plaintiff has “acknowledge[d] that he failed to provide the appropriate
capacity.” To the contrary, Plaintiff’s response stresses his belief that his original
complaint was sufficient as a matter of law to identify each Defendant in both his individual
and official capacities. Only if this Court agrees with Defendants and deems capacity to
be insufficiently pleaded does Plaintiff seek to amend to clarify that his claims were filed
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opposition to dismissal does not amount to a concession that his original claims should
be dismissed.
The undersigned further rejects Defendants’ underlying premise – that this Court
must construe the original complaint as alleging claims solely and exclusively against the
Defendants in their official capacities as a matter of law. First, the fact that the Court has
already dismissed, on initial screening, all claims for monetary damages against
Defendants in their official capacities implies that the Court viewed the remaining claims
for damages as against the Defendants in their individual capacities. In fact, the
Defendants’ answers, which present the defense of qualified immunity, similarly suggest
that the Defendants themselves viewed the complaint as asserting such claims.1 Last but
not least, in Moore v. City of Harriman, 272 F.3d 769 (6th Cir. 2001) (en banc), the Sixth
Circuit held that a “course of proceedings” test determines whether or not § 1983
defendants have received adequate notice that they are being sued in their individual
capacities. In Moore, the Sixth Circuit distinguished the cases relied upon by Defendants,
and explained that a failure to specify capacity “is not fatal if the course of proceedings
otherwise indicates that the defendant received sufficient notice.” Id. at 772.
The present case is in the early stages of litigation. Based upon the course of
proceedings to date (including the nature of the claims, Defendants’ answers, and
1 The case chiefly relied upon by Defendants, Soper v. Hoben, examined capacity in the context of a motion
for summary judgment, not at the outset of a case in a motion to dismiss. Still, the Sixth Circuit declined to
grant judgment to the defendants because the defendants had discussed the issue of qualified immunity.
Id. at 853. Also noteworthy is that in Soper, the plaintiffs were represented by counsel and were not entitled
to the liberal construction of their complaint that the pro se plaintiff is entitled to here.
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has provided adequate notice to the Defendants of his intention to sue them for monetary
damages in their individual capacities. Therefore, the undersigned recommends denial
of Defendants’ respective motions to dismiss all claims for monetary damages against
them.
B. Dismissal Based on Respondeat Superior
As an additional ground for dismissing all claims against Defendant Erdos, that
Defendant argues that Plaintiff’s allegations do no more than present a claim based upon
supervisory liability or respondeat superior, a doctrine that has no application under 42
U.S.C. § 1983. However, in this Court’s initial screening of the complaint, the Court
already dismissed all claims against any defendant (including Erdos) “to the extent
plaintiff seeks to sue them under a respondeat superior theory.” (Doc. 4 at 5). There is
no need to dismiss claims that already have been dismissed.
As to Defendant Erdos specifically, dismissal is not warranted because this Court
liberally construed Plaintiff’s allegations as asserting a more active and personal role than
respondeat superior: chiefly, “his alleged memorandum ordering the challenged searches
[against Plaintiff] occurring between January 18, 2017 and February 16, 2017.” (Id.) In
advocating for dismissal, Defendants assert that Plaintiff “fails to show direct instances
and provide details of such occurrences where Defendant Erdos directly participated in
the search or show any direct proof where Defendant was personally involved in such.”
(Doc. 9 at 8). In response, Plaintiff reasonably argues that he requires discovery in order
to provide the details and “proof” that Defendants seek.
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and supported by citation to the record. But a plaintiff is not required to present “direct
proof” at the pleading stage, and Rule 12(b)(6) does not support dismissal based upon a
lack of evidentiary support. Under Rule 12(b)(6), Plaintiff’s allegations are assumed to
be true. In the context of Rule 8’s “notice pleading” standards, where Plaintiff’s pro se
pleading is to be liberally construed, Defendants’ motion must be denied.
C. Dismissal of Improper Claim for Injunctive Relief
Only Defendants’ last argument has merit. Plaintiff’s original complaint seeks “an
injunction preventing the [sic] ODRC from ever sending him back to SOCF.” Defendants
seek to dismiss this claim because Plaintiff failed to identify the parties against whom he
seeks injunctive relief, and/or to tie the relief to the claims presented in this lawsuit.
Plaintiff does not oppose dismissal of this single claim, but instead seeks to withdraw the
claim for injunctive relief. (See Doc. 15 at 4-5, agreeing that “injunctive relief was
inappropriately sought against the presently named defendants,” and “withdraw[ing] his
request for such an injunction.”) Considering the arguments of both parties, and Plaintiff’s
amendment to his complaint (Doc. 16), the undersigned recommends that all claims for
injunctive relief in this case be dismissed without prejudice.2
IV. Conclusion and Recommendation
For the reasons stated, IT IS RECOMMENDED THAT the motions of the
2 The Defendants also seek dismissal of the claim for injunctive relief as moot in light of Plaintiff’s transfer
to OSP. Although the Sixth Circuit has held that a prisoner’s request for injunctive relief at a facility may be
rendered moot by his subsequent transfer to another institution, Plaintiff’s specific request is not moot
because he still could be transferred back to SOCF.
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insofar as Plaintiff has agreed to voluntarily dismiss those claims without prejudice and
has amended his complaint to do so. However, Defendants’ motions to dismiss other
claims against them in their individual capacities should be DENIED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
.
KARL FUGATE, Case No. 1:19-cv-30
Plaintiff, Dlott, J.
Bowman, M.J.
v.
RON ERDOS, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written objections
to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of the filing date of
this R&R. That period may be extended further by the Court on timely motion by either side for an
extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be
accompanied by a memorandum of law in support of the objections. A party shall respond to an
opponent’s objections within FOURTEEN (14) DAYS after being served with a copy of those
objections. Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).
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