# Allen v. Smith

> District Court, S.D. Ohio · September 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10376384

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 22, 2020
- **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/10376384

## How later opinions describe it (automated extraction)

- holding that Section 1983 claims against agents of the state in their official capacity are not cognizable
- 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”
- 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”
- 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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376384. Public record. Not legal advice.