# Reed v. Mohr

> District Court, S.D. Ohio · October 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10374067

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10374067

## Opinion text

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.
2
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
3
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
4
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.
5
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
6
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,
7
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
8
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).
9
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
10
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
11
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
12
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
13
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

14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374067. Public record. Not legal advice.