Allen v. Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JACOB ANTHONY ALLEN,

Plaintiff, Civil Action 2:20-cv-2121

v. Judge James L. Graham

Chief Magistrate Judge Elizabeth P. Deavers

RODNEY SMITH, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state inmate under the supervision of the Ohio Department of Rehabilitation

and Corrections at the Southeastern Ohio Regional Jail (“SEORJ”), proceeding without the

assistance of counsel, brings this action under 42 U.S.C. § 1983 against Athens County Sheriff

Rodney Smith, SEORJ Warden Joshua VanBibber1, and SEORJ Health Care Administrator

Heather Dorsey. (ECF No. 1-1.) This Court previously granted Plaintiff leave to proceed in

forma pauperis in this action. (ECF No. 2.)

This matter is before the Court for an initial screen of Plaintiff’s Complaint under 28

U.S.C. §§ 1915(e)(2), 1915A to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

1 Plaintiff identifies Defendant as “J. Vanbiber.” (Id. at PAGE ID # 10.) For purposes of this

Report and Recommendation, this Court will refer to this Defendant as “VanBibber,” as this

Court has taken judicial notice that the Warden of the SEORJ is Joshua VanBibber. See Fed. R.

Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute

because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be

accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.”).

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A. Having performed the initial screen, the

Undersigned finds that the Complaint fails to state claims on which relief can be granted with

respect to Defendants Smith and VanBibber, but that Plaintiff should be permitted to proceed

against Defendant Dorsey. The Undersigned additionally recognizes that Plaintiff may intend to

assert additional claims against at least one of his arresting officers.

For the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff’s

claims against Defendants Smith and VanBibber in their entirety, ALLOW Plaintiff to proceed

with his claims for medical deliberate indifference against Defendant Dorsey in her individual

capacity, and GRANT LEAVE for Plaintiff to AMEND the Complaint to seek claims against

the arresting officers he references in the Complaint.

I.

According to the Complaint, on March 29, 2020, Plaintiff was driving his vehicle at or

near the premises of a hotel in Athens, Ohio. (ECF No. 1-1 at PAGEID # 11.) Plaintiff alleges

he then was arrested by multiple officers from the Athens County Sheriff’s Office, including but

not limited to an officer identified as “Deputy Palemento.” (Id. at PAGEID ## 11-13.) Plaintiff

alleges that during the course of the arrest, the officers used unnecessary force and verbally

abused him. (Id.) Specifically, Plaintiff alleges that “Deputy Palemento” threatened to shoot

Plaintiff; that one of the officers punched Plaintiff in the side of the head while Plaintiff was

laying on the ground, face-down in handcuffs; and that at least one of the officers spat on

Plaintiff. (Id.) Plaintiff also alleges the officers made Plaintiff climb a fence while handcuffed,

and when Plaintiff did so he fell face-first into the ground. (Id. at PAGEID # 12.) Plaintiff

alleges he repeatedly requested medical help from the officers, but none was provided. (Id. at

PAGEID ## 12-13.)

Plaintiff alleges he was taken to the SEORJ following the arrest. (Id. at PAGEID # 13.)

While at the SEORJ, Plaintiff alleges listing his medical conditions to a corrections officer

identified as “Chaseman,” an unidentified nurse, the medical staff, “the jail,” and the Athens

County Sheriff’s Office, but he was refused treatment. (Id. at PAGEID ## 13-14.) Specifically,

in addition to other medical conditions, Plaintiff alleges he informed these individuals that he

was scheduled to undergo surgery for Thoracic Outlet Syndrome on April 13, 2020, but he did

not get transported away from the SEORJ for that procedure. (Id.) Plaintiff also alleges that

“[a]ll of [his] physical and mental conditions have been brought to the attention” of the Athens

County Prosecuting Attorney, the Athens County Sheriff’s Office, the SEORJ, and Defendant

Dorsey. (Id. at PAGEID # 15.)

Plaintiff now brings this action against Defendants Smith, VanBibber, and Dorsey. (Id.

at PAGEID # 10.) Plaintiff states that he is proceeding against Defendants pursuant to 42 U.S.C.

§ 1983 and for a violation of his Eighth Amendment rights. (Id. at PAGEID ## 15-16.) Plaintiff

seeks $725,000.00 in compensatory damages, and seeks injunctive relief requiring that the

SEORJ provide adequate medical care to Plaintiff, transfer Plaintiff to a facility that will provide

Plaintiff with adequate medical care, or both. (Id. at PAGEID # 17.) Plaintiff also requests that

the SEORJ reschedule Plaintiff’s Thoracic Outlet Syndrome surgery, as well as all other missed

physical and mental appointments. (Id.)

II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), 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). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

2 Formerly 28 U.S.C. § 1915(d).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

III.

Plaintiff brings his federal law claims against Defendants under 42 U.S.C. § 1983, which

provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceedings for redress.

In order to proceed under Section 1983, a plaintiff must prove both that (1) the perpetrator acted

under color of state law; and (2) the conduct deprived the complainant of rights, privileges, or

immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.

527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev’d and remanded sub

nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under

Section 1983 must allege that the deprivation of his rights was intentional or at least the result of

gross negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not

actionable under Section 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987).

A. Claims against Defendants in their Official Capacity

As a preliminary matter, Section 1983 does not permit Plaintiff to bring his claims

against Defendants in their official capacity. Section 1983 imposes liability only upon a

“person” who, under color of law, subjects another person to a deprivation of federal rights. 42

U.S.C. § 1983. State officials acting in their official capacity are not “persons” under Section

1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, to the extent

that Plaintiff brings his Section 1983 claims against Defendants in their official capacity, they are

not cognizable. See Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003) (holding that Section

1983 claims against agents of the state in their official capacity are not cognizable).

B. Claims against Defendants in their Individual Capacity

To state a claim against a defendant in his individual capacity, a plaintiff must allege

personal involvement of the defendant in causing plaintiff’s injury. Hardin v. Straub, 954 F.2d

1193, 1196 (6th Cir. 1992). A party cannot be held liable under Section 1983 unless the party

personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the

allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir.

1989). To establish liability under Section 1983 against an individual defendant, a plaintiff must

plead and prove that the defendant was personally involved in the conduct that forms the basis of

his complaint. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (stating that,

“[a]t a minimum a [Section] 1983 plaintiff must show that a supervisory official at least

implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct”).

Thus, a claimed constitutional violation must be based on active unconstitutional behavior,

Greene, 310 F.3d at 899; Shehee, 199 F.3d at 300, and cannot be based upon the mere right to

control employees. Polk Co. v. Dodson, 454 U.S. 312 (1981); Monell v. New York City Dep’t of

Soc. Serv., 436 U.S. 658 (1978). A plaintiff must demonstrate that a supervisory defendant “did

more than play a passive role in the alleged violation or showed mere tacit approval of the goings

on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Supervisory liability cannot be

based upon the failure to act, Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004), or simply

because a supervisor denied an administrative grievance or failed to act based upon information

contained in a grievance. Shehee, 199 F.3d at 300. Merely bringing a problem to the attention of

a supervisory official is not sufficient to impose liability. Shelly v. Johnson, 684 F.Supp. 941,

946 (W.D. Mich. 1987). Plaintiffs must allege defendants were personally involved because

“[Section] 1983 liability cannot be imposed under a theory of respondeat superior.” Grinter v.

Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). Thus, to hold a supervisor liable

under Section 1983, a plaintiff “must show that the official at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct. . . .” Everson v. Leis, 556

F.3d 484, 495 (6th Cir. 2009).

Against this backdrop, Plaintiff has failed to state a Section 1983 claim against

Defendants Smith and VanBibber in their individual capacities. At their essence, Plaintiff’s

implicit allegations against Defendants Smith and VanBibber appear to be that they “play[ed] a

passive role in the alleged violation or showed mere tacit approval of the goings on,” which is

not sufficient to impose Section 1983 liability. Bass, 167 F.3d at 1048. Plaintiff does not allege

that Defendant Smith was personally involved in Plaintiff’s arrest or detainment, and Plaintiff

similarly does not allege that Defendant VanBibber was personally involved in the conditions of

Plaintiff’s confinement. To that end, Plaintiff’s Complaint does not include any allegations of

Defendant Smith’s or Defendant VanBibber’s personal involvement in, or knowledge of, any of

the allegations in Plaintiff’s Complaint. Plaintiff’s Complaint thus fails to give rise to a plausible

inference that Defendants Smith and VanBibber were actively engaged in any unconstitutional

behavior as a result of their supervisory positions or handling of Plaintiff’s several grievances.

While the Complaint does not include any allegations against Defendants Smith and

VanBibber, Plaintiff does allege that Defendant Dorsey had actual knowledge of Plaintiff’s

“physical and mental conditions” and was deliberately indifferent to his medical needs. (ECF

No. 1-1 at PAGEID ## 15-16.) These allegations set Defendant Dorsey apart from Defendants

Smith and VanBibber.

Plaintiff does not identify whether he is suing Defendant Dorsey in her official or

individual capacity. (See generally Complaint, ECF No. 1-1.) To the extent that Plaintiff

intends to proceed on a Section 1983 claim against Defendant Dorsey in her official capacity,

this claim is not cognizable. See Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003) (holding

that Section 1983 claims against agents of the state in their official capacity are not cognizable).

Construing liberally, see Haines, 404 U.S. at 520, this Court assumes Plaintiff sues Defendant

Dorsey in her personal capacity. Accordingly, Plaintiff’s claims should be permitted to proceed

against this Defendant.

IV.

Finally, Plaintiff’s Complaint begins with allegations of physical and verbal abuse by the

arresting officers from the Athens County Sheriff’s Department. (ECF No. 1-1 at PAGEID ##

11-13.) As discussed, this Court concludes that the Complaint fails to state a claim against

Defendant Smith, as the Complaint does not contain any allegations against Defendant Smith,

among other reasons. However, while the Complaint does not contain any allegations against

Defendant Smith, Plaintiff includes specific allegations in the Complaint against the arresting

officers within the Athens County Sheriff’s Department, including one officer identified in the

Complaint as “Deputy Palemento.” (Id.)

It is thus unclear whether Plaintiff has intended to assert any causes of action against the

arresting officers, including but not limited to “Deputy Palemento.” Although respectful of

Plaintiff’s pro se status, Haines, 404 U.S. at 520, this Court is unable to evaluate potential claims

against unnamed defendants. Should Plaintiff amend his Complaint to assert claims against

“Deputy Palemento,” or any of the other arresting officers, then this Court will evaluate the

viability of such claims at that time.

V.

For the reasons stated above, the Undersigned RECOMMENDS that Plaintiff’s claims

for medical deliberate indifference continue against Defendant Dorsey in her individual capacity.

Furthermore, it is RECOMMENDED that the Court DISMISS all of Plaintiff’s other claims for

failure to assert any claim on which relief may be granted. Finally, it is RECOMMENDED that

the Court GRANT LEAVE for Plaintiff to AMEND the Complaint to seek claims against the

arresting officers he references in the Complaint, if so desired, within TWENTY-ONE (21)

DAYS of an Order adopting this Report and Recommendation.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, it

may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: September 22, 2020 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE