Reed v. Mohr

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Lashaun M. Reed,

Plaintiff,

v. Case No. 2:19-cv-738

Gary Mohr, et al.,

Defendants.

OPINION AND ORDER

This is an action brought pursuant to 42 U.S.C. §1983 by

plaintiff Lashaun M. Reed, an Ohio state prison inmate proceeding

pro se, against Gary C. Mohr, Director of the Ohio Department of

Rehabilitation and Correction (“ODRC”), Jeff Noble, Warden of the

Madison Correctional Institution (“MCI”), and Captain Christopher

Alexander, an employee at MCI. In his complaint filed on March 5,

2019, plaintiff essentially asserts that the defendants were

indifferent to his medical needs, thereby violating his Eighth

Amendment rights. Specifically, plaintiff alleges that Captain

Alexander was called to plaintiff’s cell because plaintiff was

trying to hang himself. Plaintiff informed Captain Alexander that

he was suicidal. Plaintiff was removed from his cell and put in a

shower. Plaintiff further alleges that “[t]hey took everything out

of my cell and put me back in there with a gown on and my boxer[s]”

but did not put him on suicide watch. Complaint, pp. 3-4.

Plaintiff further alleges that he then cut his wrist with a sharp

object (the nature of this object was not described in the

complain)t, after which he was then put on watch. Complaint, p. 4.

Plaintiff requests that the defendants be held accountable for

their actions in this matter and that they pay for his emotional

stress and their failure to do their job “for a reason[able] amount

of money.” Doc. 3, p. 5.

On July 30, 2019, the magistrate judge issued a report and

recommendation addressing the May 9, 2019, motion to dismiss filed

on behalf of defendants Noble and Alexander1 pursuant to Fed. R.

Civ. P. 12(b)(6). The magistrate judge noted that any official

capacity claims against all three defendants are essentially claims

against the State of Ohio, and recommended that the official

capacity claims be dismissed as barred by state sovereign immunity

under the Eleventh Amendment. The magistrate judge further found

that the complaint failed to state a claim against Mohr and Noble

in their individual capacities. The magistrate judge observed that

the complaint did not allege that these defendants were personally

involved in the alleged misconduct, and that they could not be held

liable based on their supervisory positions alone. The magistrate

judge also found that the complaint was sufficient to state a

medical indifference claim against Captain Alexander.

On August 13, 2019, defendants filed a partial objection to

the report and recommendation, contesting the magistrate judge’s

conclusions concerning the individual capacity claim against

Captain Alexander. This matter is now before the court for

consideration of the report and recommendation.

II. Standards of Review

1Former Director Mohr is no longer with ODRC and has not been

served. However, the defendants’ motion also advocated the

dismissal of plaintiff’s claim against Mohr. The magistrate judge

correctly concluded that the complaint failed to state a claim

against Mohr and Noble, and no objection has been raised to that

conclusion. The court will therefore adopt the recommendation of

the magistrate judge to dismiss all claims against those two

defendants.

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If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

In ruling on a motion to dismiss under Rule 12(b)(6), the

court must construe the complaint in a light most favorable to the

plaintiff, accept all well-pleaded allegations in the complaint as

true, and determine whether plaintiff undoubtedly can prove no set

of facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008). To

survive a motion to dismiss, the “complaint must contain either

direct or inferential allegations with respect to all material

elements necessary to sustain a recovery under some viable legal

theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

While the complaint need not contain detailed factual allegations,

the “[f]actual allegations must be enough to raise the claimed

right to relief above the speculative level,” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), and must create a reasonable

expectation that discovery will reveal evidence to support the

claim, Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776,

780 (6th Cir. 2007).

III. Defendants’ Partial Objection

A. Official or Individual Capacity Claim

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In the report and recommendation, the magistrate judge

liberally construed the complaint and assumed that plaintiff

intended to sue the defendants in both their official and

individual capacities. See Doc. 17, pp. 2-3 (citing Arauz v. Bell,

307 F. App’x 923, 927, n. 2 (6th Cir. 2009)(liberally construing a

pro se complaint and assuming that plaintiff intended to sue the

defendants in their official and individual capacities)).

Defendants argued in their objection that plaintiff was required to

specifically state in the complaint that he was suing them in their

individual capacities. In response, plaintiff submitted a document

which was captioned as a motion, but which was docketed as an

objection. See Doc. 23. Plaintiff essentially stated in this

document that he intended to assert both official and individual

capacity claims in his complaint. The document can arguably be

construed as a response to defendants’ objections or as a motion to

amend or clarify the complaint. Defendants have filed a motion to

strike this document, arguing that it constitutes an unauthorized

amendment to the complaint. See Doc. 24.

In Wells v. Brown, 891 F.2d 591, 593-594 (6th Cir. 1989), the

court held that inmates were required to set forth clearly in their

pleadings that they were suing state officials in their individual

capacities, and that, absent specific notice, an ambiguous

complaint would be construed as a complaint against the officers in

their official capacities. The court stated that this pleading

requirement was designed to give defendants prompt notice of the

possibility of individual liability and to establish jurisdiction

early in the case (noting that the Eleventh Amendment bar is

frequently invoked in actions against state officials). Id. at

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593-94.

However, in Moore v. City of Hariman, 272 F.3d 769, 772-773

(6th Cir. 2001)(en banc), the court rejected the argument that

Wells established a per se rule of affirmative pleading, and

adopted instead a “course of proceedings” test. This test

considers factors such as the nature of plaintiff’s claims; whether

there is a request for compensatory and punitive damages; the

nature of any defenses raised in response to the complaint,

particularly claims of qualified immunity; whether any subsequent

pleadings put the defendant on notice of the capacity in which he

is sued; and whether that notice occurred in the early stages of

litigation. Id. at 772, n. 1.

In this case, the complaint is drafted on a form which appears

to have been provided by the prison library. The complaint does

not specifically state whether the defendants are sued in their

official and/or individual capacities. However, in his prayer for

relief, plaintiff stated that he wanted the court to find the

defendants accountable for their actions and to have them pay for

his emotional stress and their failure to do their job “for a

reason[able] amount of money.” Doc. 3, p. 5. The request for

monetary damages alone would not be sufficient to put Alexander on

notice that he is being sued in his individual capacity. Shepherd

v. Wellman, 313 F.3d 963, 968-69 (6th Cir. 2002). However, in this

case, the caption of the complaint contained only Alexander’s name,

not his position of captain. Plaintiff only provided Alexander’s

official title when directed to do so later in the form. Doc. 3,

pp. 1, 3. The caption and the prayer for monetary damages gave

Alexander notice that he was being sued in his individual capacity.

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See Moore, 272 F.3d at 773 (complaint which sought compensatory and

punitive damages and listed only the officers’ names in the

caption, not their official titles, provided sufficient notice to

the officers that they were being sued as individuals).

Defendants asserted the defense of qualified immunity in their

motion to dismiss, and reiterated that defense in their partial

objection to the report and recommendation. The Sixth Circuit has

held that a defendant’s assertion of qualified immunity as a

defense demonstrates that he had fair notice of individual

liability. See Nouri v. County of Oakland, 615 F. App’x 291, 295

(6th Cir. 2015)(assertion of qualified immunity defense suggested

that defendant had fair notice of individual liability under the

“course of proceedings” test); Garcia v. Dykstra, 260 F. App’x 887,

895 (6th Cir. 2008)(demand for money damages combined with the

assertion of a qualified immunity defense demonstrated that

defendants were aware of potential liability in their individual

capacities).

Plaintiff also responded to defendants’ objection with a

document in which he stated that he intended for his complaint to

assert both official and individual capacity claims. See Doc. 23.

The Sixth Circuit has held that responsive pleadings indicating an

intent to sue the defendant in his individual capacity can give

sufficient notice. See Moore, 272 F.3d at 774 (holding that

plaintiff’s response to officers’ motion to dismiss clarified any

ambiguity in the complaint); Abdur-Rahman v. Michigan Dept. of

Corrections, 65 F.3d 489, 491 (6th Cir. 1995)(response to motion

for summary judgment which made it clear that plaintiff intended to

sue defendant in his individual and official capacities provided

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sufficient notice). Plaintiff’s filing, which resolved any

remaining ambiguity concerning plaintiff’s intent to sue the

defendants in their individual capacities, was provided in the

early stages of the case, thus satisfying both of the concerns

addressed in Wells.

The court concludes that the complaint provided the defendants

with sufficient notice that they were named in their official and

individual capacities. This conclusion is supported by the

subsequent proceedings in the case. In light of this finding, the

court need not address the issue of whether plaintiff’s objection

should be construed as a motion to amend the complaint.

Defendants’ motion to strike plaintiff’s objection will be denied.

B. Eighth Amendment Claim

1. Standards

Defendants have objected to the conclusion of the magistrate

judge that plaintiff’s complaint states a claim under the Eighth

Amendment against Alexander. Although plaintiff did not

specifically identify his claim as an Eighth Amendment claim or his

cause of action as one under §1983, he was not required to plead

legal theories or to specify what provision of law the defendants

allegedly violated. See Gean v. Hattaway, 330 F.3d 758, 765 (6th

Cir. 2003); Shah v. Inter-Continental Hotel Chicago Operating

Corp., 314 F.3d 278, 282 (7th Cir. 2002).

To establish an Eighth Amendment violation based on the

failure to provide medical care, a prisoner must show that he has

a serious medical condition and that the defendants displayed a

deliberate indifference to his medical needs. Farmer v. Brennan,

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511 U.S. 825, 839 (1994); Rhinehart v. Scutt, 894 F.3d 721, 737

(6th Cir. 2018). As to the first requirement, which is objective,

a medical need is 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 v. Kalamazoo County, 390 F.3d 890,

897 (6th Cir. 2004). To establish the subjective component of

deliberate indifference, the official must subjectively know of and

disregard an excessive risk to inmate health or safety. Farmer,

511 U.S. at 844. The defendant must have been subjectively

reckless, such that the defendant was actually aware of facts from

which the inference could be drawn that a substantial risk of

serious harm existed, and must have also drawn the inference. Bays

v. Montmorency County, 874 F.3d 264, 268 (6th Cir. 2017).

A prisoner’s right to be free from deliberate indifference to

medical needs extends to an inmate’s psychiatric needs. Richmond

v. Huq, 885 F.3d 928, 237 (6th Cir. 2018). In the context of

attempted suicide, “proof of a prisoner’s psychological needs

manifesting themselves in suicidal tendencies with ‘a strong

likelihood that he would attempt to take his own life’ are

sufficiently serious for purposes of the objective component.”

Galloway v. Anuszkiewicz, 518 F. App’x 330, 333 (6th Cir.

2013)(quoting Gray v. City of Detroit, 399 F.3d 612, 616 (6th Cir.

2005)). The subjective component is satisfied “with proof that a

prison official drew an inference from the available facts that

there was a ‘strong likelihood’ of prisoner suicide, but then

disregarded that risk by failing to take adequate precautions to

mitigate the risk.” Galloway, 518 F. App’ at 333 (citing Gray, 399

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F.3d at 616).

2. Physical Injury Requirement

Defendants argue that plaintiff has not alleged a physical

injury which satisfies the Prison Litigation Reform Act (“PLRA”),

42 U.S.C. §1997e(e). That section states:

No Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while

in custody without a prior showing of physical injury.

42 U.S.C. §1997e(e). Plaintiff alleged that he cut his wrist on a

sharp object after he was returned to his cell without being placed

on suicide watch. Defendants argue that this does not constitute

a “physical injury” under the PLRA because it was a self-inflicted

injury.

The magistrate judge correctly concluded that plaintiff’s

complaint alleges a physical injury which satisfies the PLRA. Some

courts have held that self-inflicted injuries do not satisfy the

physical injury requirement under the PLRA. See Morrill v. Holmes

County Jail, No. 5:15-cv-324-WTH-GRJ, 2018 WL 7082149 at *9-10

(N.D.Fla. Jan. 30, 2018)(citing cases). However, the Sixth Circuit

has held that a self-inflicted injury stemming from an attempted

suicide satisfies the requirements of §1997e(e). See Arauz, 307 F.

App’x at 929. Other courts have agreed with the Sixth Circuit’s

view. See Stees v. Guard, Maine State Prison, No. 1:14-cv-00133-

GZS, 2015 WL 786919, *2 (D. Me. Jan. 26, 2015); Lopes v. Beland,

No. 11-cv-12063, 2014 WL 1289455, *11 (D. Mass. March 29, 2014);

Habeebullah v. Crawford, No. 08-4063-CV-C-NKL, 2011 WL 2458060, *5

(W.D.Mo. June 17, 2011); Proctor v. Felker, No.. CIV S-08-3138 JAM

GGH P, 2009 WL 4828739, *3 (E.D. Cal. Dec. 9, 2009).

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Even assuming that plaintiff’s self-inflicted injury does not

satisfy the physical injury requirement in §1997e(e), that would

not warrant dismissal of the complaint. Section 1997e(e) would not

preclude a claim for injunctive or declaratory relief, or a claim

for compensatory, nominal or punitive damages based on a violation

of plaintiff’s Eighth Amendment rights. See Lucas v. Chalk, No.

18-6272, 2019 WL 3889720, *3 (6th Cir. Aug. 19, 2019)(a claim for

injunctive relief or for nominal, compensatory and punitive damages

for constitutional violations are not prohibited by the

PLRA)(citing King v. Zamiara, 788 F.3d 207, 213 (6th Cir.

2015)(the PLRA says nothing about claims brought to redress

constitutional injuries, which are distinct from mental and

emotional injuries); Hughes v. Lott, 350 F.3d 1157, 1162 (11th

Cir. 2003)(§1997e(e) is not a bar to a suit seeking nominal

damages); Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir.

2003)(lack of physical injury does not foreclose an action for

nominal or punitive damages for an Eighth Amendment violation).

3. Violation of a Constitutionally Protected Right

Defendants argue that plaintiff has failed to allege a

violation of a constitutionally protected right. The magistrate

judge correctly found that the complaint alleges a violation of

plaintiff’s Eighth Amendment rights. Although the right to medical

care for serious medical needs does not encompass the right to be

screened correctly for suicidal tendencies, prison officials who

have been alerted to a prisoner’s serious medical needs are under

an obligation to offer medical care to such a prisoner. Comstock

v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). Here, plaintiff is

not invoking a general right to be accurately diagnosed for

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suicidal tendencies. Rather, he is asserting “the more basic right

to continuing medical treatment once a prisoner has been determined

to be suicidal.” Id. at 711.

The court agrees with the magistrate judge’s finding that the

allegations in the complaint are sufficient to satisfy the

objective component of a serious medical need. A prisoner’s

“psychological needs may constitute serious medical needs,

especially when they result in suicidal tendencies.” Horn by Parks

v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994).

Plaintiff alleges that Captain Alexander discovered him trying to

hang himself in his cell, and that he informed Captain Alexander

that he was suicidal. These allegations satisfy the objective

component of plaintiff’s Eighth Amendment claim. See Comstock, 273

F.3d at 703 (allegations that defendants were indifferent to

inmate’s suicidal tendency satisfied the objective component).

Although defendants downplay the seriousness of plaintiff’s mental

state, noting his statement that he “was going thru [sic] something

that day,” that does not minimize the fact that plaintiff reported

being suicidal on the day in question, and that he allegedly

attempted suicide twice that day.

The magistrate judge also did not err in concluding that the

allegations in the complaint are sufficient to allege the

subjective requirements for liability. Plaintiff alleges that

Captain Alexander was called to his cell because he was trying to

hang himself, and that he told Captain Alexander that he was

suicidal. Plaintiff further contends that when he was returned to

his cell after it was searched, he was not placed on suicide watch,

and he cut his wrist with a sharp object. Defendants have posed

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factual scenarios as possible defenses, suggesting that Captain

Alexander may have concluded that searching the cell was sufficient

to obviate any suicide risk. How much Captain Alexander knew about

the search of the cell and how plaintiff managed to obtain the

unidentified sharp object to use in cutting his wrist are

conjectural matters outside the face of the complaint.

Plaintiff clearly alleged that Captain Alexander was called to

his cell when he tried to hang himself, and that he told Captain

Alexander that he was suicidal. These allegations indicate that

Captain Alexander had knowledge of the plaintiff’s suicidal state

of mind. Plaintiff further alleges that when he was returned to

his cell, he was not placed on suicide watch, contrary to a prison

regulation dealing with suicide prevention which he identifies as

“67-MHN-09.” Plaintiff further discusses this policy provision in

his opposition to defendants’ motion to dismiss. See Doc. 15.

According to plaintiff, this policy requires that the inmate be put

on constant watch if no mental health staff is available at the

time information concerning an inmate’s suicide risk is received.

Doc. 15, p. 2. The failure to follow internal policies for suicide

prevention can “be considered more than negligent.” Comstock, 273

F.3d at 709. The complaint is sufficient to allege that Captain

Alexander was deliberately indifferent to plaintiff’s serious

psychological medical needs.

C. Qualified Immunity Defense

Defendants also object to the magistrate judge’s failure to

recommend dismissal based on the defense of qualified immunity.

Under the qualified immunity doctrine, government officials are

entitled to qualified immunity for discretionary acts that do not

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violate clearly established federal statutory or constitutional

rights of which a reasonable person would have known. Anderson v.

Creighton, 483 U.S. 635, 638-39 (1987). The qualified immunity

analysis involves asking whether: (1) the facts, viewed in the

light most favorable to plaintiff, show a violation of a

constitutional right; and (2) the right at issue was clearly

established at the time of the alleged misconduct; either of these

prongs may be addressed first. Pearson v. Callahan, 555 U.S. 223,

232-36 (2009). Qualified immunity shields individuals not just

against liability, but against the suit itself. Id., 555 U.S. at

231.

The magistrate judge correctly noted that “it is generally

inappropriate for a district court to grant a 12(b)(6) motion to

dismiss on the basis of qualified immunity.” Wesley v. Campbell,

779 F.3d 421, 433 (6th Cir. 2015). Although a defendant’s

entitlement to qualified immunity is a threshold question to be

resolved at the earliest possible point, the earliest possible

point “is usually summary judgment and not dismissal under Rule

12.” Id. at 433-34. See also Grose v. Caruso, 284 F. App’x 279,

283-84 (6th Cir. 2008)(in case alleging an Eighth Amendment claim

of inadequate medical treatment, a Rule 12(b)(6) motion to dismiss

on basis of qualified immunity was premature; the subjective state

of mind of prison officials was a fact-specific inquiry, and

plaintiff had not yet had the opportunity to initiate discovery or

to develop a factual record upon which the qualified immunity

determination could be based).

The magistrate judge also correctly noted that the right to be

free from deliberate indifference to an inmate’s psychiatric needs

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and the right to continuing medical treatment once a prisoner has

been determined to be suicidal were clearly established at the time

of the events in question. See Richmond, 885 F.3d at 939;

Comstock, 273 F.3d at 711. The court agrees with the magistrate

judge’s conclusion that defendant Alexander is not entitled to a

dismissal of plaintiff’s claim on qualified immunity grounds at

this stage of the case.

IV. Conclusion

In accordance with the foregoing, the court agrees with the

report and recommendation (Doc. 17), and it is hereby adopted.

Defendants’ partial objection (Doc. 18) is denied. The motion to

strike (Doc. 24) is denied. The motion to dismiss (Doc. 8) is

granted in part and denied in part. All official capacity claims

and all claims against defendants Mohr and Noble are dismissed.

The motion to dismiss the Eighth Amendment claim against defendant

Alexander in his individual capacity is denied.

Date: October 15, 2019 s/James L. Graham

James L. Graham

United States District Judge

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