# Oliphant v. Goodmen

> District Court, S.D. Ohio · September 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10376419

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 24, 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/10376419

## How later opinions describe it (automated extraction)

- holding that the “appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10, which requires that actions for bodily injury be filed within two years after their accrual”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DERRICK OLIPHANT, Case No. 1:19-cv-00662
Plaintiff, Black, J.
Litkovitz, M.J.

v.

MRS. GOODMEN, REPORT AND
Defendant. RECOMMENDATION

Plaintiff Derrick Oliphant, an inmate at the Southern Ohio Correctional Facility
(“SOCF”) proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983 alleging that
defendant Bertha Goodman1 was deliberately indifferent to his medical needs in violation of the
Eighth Amendment. This matter is before the Court on defendant’s first motion to dismiss
plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 7), plaintiff’s response in
opposition (Doc. 13), and defendant’s reply memorandum (Doc. 14).2
I. Facts
Plaintiff makes the following allegations in his complaint. Plaintiff dislocated his right
shoulder while incarcerated at SOCF in 2016. (Doc. 1 at 4). After the injury, SOCF transferred
plaintiff to the Ohio State University Hospital (“OSU”) for examination. (Id.). The doctor at
OSU advised plaintiff that he needed surgery and to keep his shoulder in a sling. (Id.). The
doctor referred plaintiff for an orthopedics checkup at Franklin Medical Center (“FMC”). (Id.).

1 Plaintiff lists defendant as “Mrs. Goodmen” in the case caption. Defendant clarifies that her name is Bertha
Goodman. (Doc. 7 at 1).
2 Initially, plaintiff failed to file a timely response in opposition to defendant’s motion to dismiss. Thereafter,
defendant filed a motion to dismiss for lack of prosecution (Doc. 10) and the Court ordered plaintiff to show cause
why the Court should not dismiss this case for lack of prosecution (Doc. 12). On June 15, 2020, plaintiff filed a
response to the motion to dismiss and the Show Cause Order. The Court will consider plaintiff’s filing.
Defendant’s motion to dismiss for lack of prosecution (Doc. 10) should therefore be denied as moot.
The doctor at FMC also stated that plaintiff needed surgery and proper medical treatment. (Id.).
Upon his return to SOCF, plaintiff conveyed these outside opinions to the doctor at SOCF and to
defendant Bertha Goodman, the Health Care Administrator at SOCF. (Id.). Plaintiff alleges that
the SOCF medical staff stated in response, “we’re not going to send [plaintiff] out for surgery

and waste money.” (Id.). According to plaintiff, the x-rays clearly showed that his right
shoulder was “hanging off” the rotator cuff. (Id.). Plaintiff stopped wearing the sling because he
believed it was not helping his shoulder. (Id.).
At the beginning of 2017, plaintiff injured his shoulder again after he hopped out of bed
and his right shoulder fell back out of place. Plaintiff proceeded through the same course of
treatment as in 2016—he was first seen by a doctor at OSU and then referred to orthopedics at
FMC. (Id.). FMC provided basic shoulder exercises for plaintiff to perform while his arm was
in the sling. (Id.). After this second injury, medical staff at SOFC told plaintiff they would help
him with his shoulder exercises during first and second shifts. (Id.). Plaintiff refused, stating
that his shoulder was still dislocated. (Id. at 5). Plaintiff states that he has been in constant pain

since the first injury and is unable to work out, play basketball, or pray “without [his] shoulder
going numb and locking up.” (Id.). Plaintiff alleges that he is “scared” to see SOCF medical
staff because they will make matters worse. (Id.). Plaintiff also alleges that he has not received
medication for his pain. (Id.).
II. Standard of Review
Defendant Bertha Goodman moves to dismiss plaintiff’s complaint pursuant to Fed. R.
Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 7 at 1). In
deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as
true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.
2005)). Only “a short and plain statement of the claim showing that the pleader is entitled to
relief” is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he statement need only give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. (quoting

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although a plaintiff need not plead
specific facts, the “[f]actual allegations must be enough to raise a right to relief above the
speculative level” and to “state a claim to relief that is plausible on its face.” Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
It is well settled that a document filed pro se is “to be liberally construed” and that a pro
se complaint, “however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme
Court’s liberal construction case law has not had the effect of “abrogat[ing] basic pleading
essentials” in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. Resolution
Defendant Goodman moves to dismiss plaintiff’s claims for several reasons. Defendant
Goodman argues that plaintiff fails to state a claim for deliberate indifference under the Eighth
Amendment. (Doc. 7 at 5-9). Defendant Goodman also argues that she cannot be held liable in
her capacity as the SOCF Healthcare Administrator under the theory of respondeat superior for
the alleged actions of other employees at SOCF. (Id. at 9-10). Defendant Goodman also argues
that plaintiff’s claims are barred by the statute of limitations and that she is entitled to qualified
immunity and Eleventh Amendment immunity to the extent plaintiff seeks monetary damages
against her in her official capacity. (Id. at 11-15). The Court will first address whether
plaintiff’s claims are barred by the statute of limitations.

The statute of limitations applicable to a § 1983 action is the statute of limitations
applicable to personal injury actions under the law of the state in which the § 1983 claim arises.
Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516, 519 (6th Cir. 1997). Plaintiff’s Eighth
Amendment claims arising at SOCF are therefore governed by Ohio’s two year-statute of
limitations applicable to personal injury claims. See, e.g., Browning v. Pendleton, 869 F.2d 989,
992 (6th Cir. 1989) (holding that the “appropriate statute of limitations for 42 U.S.C. § 1983 civil
rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10, which requires that
actions for bodily injury be filed within two years after their accrual”).
“[T]he accrual date of a § 1983 cause of action is a question of federal law that
is not resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis

in original). Under federal law, a cause of action accrues for statute of limitations purposes
“when plaintiff[ ] knew or should have known of the injury which forms the basis of [his]
claims.” Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). The “inquiry focuses on the harm
incurred, rather than the plaintiff’s knowledge of the underlying facts which gave rise to the
harm.” Id. at 501 (quoting Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)).
The statute of limitations commences to run when the plaintiff knows or, in the exercise of due
diligence, has reason to know of the injury which is the basis for his cause of action. Sevier v.
Turner, 742 F.2d 262, 273 (6th Cir. 1984); see also Ruff, 258 F.3d at 501. In determining the
date of accrual for the cause of action, courts look for an event that “[w]ould have alerted the
typical lay person to protect his or her rights.” Kuhnle Bros, Inc., 103 F.3d at 520.
In this case, plaintiff’s cause of action accrued sometime in 2016 when he injured his
shoulder and alleges that he was first denied proper medical treatment. Although plaintiff’s

complaint does not indicate a definite date of his injury, plaintiff alleges that he dislocated his
right shoulder in 2016 and was told by SOCF medical staff after receiving treatment at OSU and
FMC that they would not send him out for surgery. These events provide the basis for plaintiff’s
injury and trigger the two-year statute of limitations. The complaint, which was not filed until
August 14, 2019, is therefore time-barred by approximately one year.
The complaint also alleges that plaintiff subsequently injured his shoulder in “[t]he
beginning of 2017” and continues to endure ongoing shoulder pain. (Doc. 1 at 4). Even
considering these allegations, the Court cannot conclude that plaintiff’s claims related to his
alleged 2016 injury are timely. The continuing violation doctrine allows a court to consider as
timely all relevant violations, including those that would otherwise be time-barred by the statute

of limitations. See Sharp v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003). The Sixth Circuit has
shown reluctance to apply this doctrine to Eighth Amendment deliberate indifference to medical
needs claims. Dearing v. Mahalma, No. 1:11-cv-204, 2011 WL 3739029, at *6 (S.D. Ohio Aug.
24, 2011) (citing Bruce v. Corr. Med. Servs. Inc., 389 F. App’x 462, 466 (6th Cir. 2010)).
Moreover, the Sixth Circuit has held that “[a]ctual acts by [a defendant] of refusing medical care
represent discrete unlawful acts (beyond passive inaction) that trigger the statute of limitations.”
Id. at *6 (quoting Bruce, 389 F. App’x at 467). Here, the event providing the basis of plaintiff’s
alleged injury is the denial of surgery in 2016, which represents a discrete act triggering the two-
year statute of limitations. Plaintiff’s cause of action accrued at the time he was denied surgery
in 2016 regardless of any alleged harm or pain that he suffered thereafter. Accordingly,
plaintiff’s Eighth Amendment claims are time-barred.
Assuming, arguendo, that plaintiff alleges an Eighth Amendment claim relating to the
reinjury of his shoulder in 2017, the complaint fails to state a claim of deliberate indifference to

his serious medical needs. In order to state a claim for relief concerning a denial of medical care,
plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prisoner who is allowed
to suffer needlessly through a denial of medical care when relief is available has a cause of
action under the Eighth Amendment against an individual whose deliberate indifference caused
the suffering. Plaintiff must allege that prison officials have denied his reasonable requests for
medical care when such need is obvious, and when he is susceptible to undue suffering or threat
of tangible residual injury. Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir. 1983); Westlake v.
Lucas, 537 F.2d 857, 860 (6th Cir. 1976); see also Estelle, 429 U.S. at 106. Where medical
assistance has been administered, such treatment must be so “woefully inadequate as to amount

to no treatment at all” in order to give rise to a cause of action under § 1983. Westlake, 537 F.2d
at 860-61 n.5. Not every claim of inadequate medical treatment states an Eighth Amendment
violation. Estelle, 429 U.S. at 105. Allegations of negligence in diagnosing or treating medical
conditions are not actionable under § 1983. Estelle, 429 U.S. at 106; Byrd, 701 F.2d at 595 n.2;
Westlake, 537 F.2d at 860-61 n.5. A prison official may be held liable under the Eighth
Amendment for denying humane conditions of confinement, including proper medical care, only
if “he knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Plaintiff’s complaint fails to allege facts plausibly suggesting that defendant Goodman
was deliberately indifferent to his medical needs. First, the Court agrees with defendant
Goodman that plaintiff’s complaint fails to allege specific actions that defendant Goodman took
or failed to take, including how she personally denied him medical treatment, or how she was

personally involved in making any decisions as to what treatment plaintiff received. (Doc. 7 at
7). Plaintiff alleges that defendant Goodman “keep[s] lying and not helping me out.” (Doc. 1 at
5). These allegations amount to the speculative, conclusory “the-defendant-unlawfully-harmed-
accusation,” which is insufficient to state a claim for relief. See Iqbal, 556 U.S. at 678. Second,
plaintiff claims that “Mrs. Goodman and her medical staff [did not] get [him] the right medical
treatment.” (Doc. 1 at 5). However, “[w]here a prisoner has received some medical attention
and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to
second guess medical judgments and to constitutionalize claims that sound in state tort law.”
Westlake, 537 F.2d at 860 n.5. It is well-settled that “a complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
Therefore, plaintiff’s disagreement with the prescribed medical treatment that he received at
SOCF for his shoulder injury does not rise to the level of deliberate indifference under the Eighth
Amendment.
Finally, to the extent plaintiff seeks to hold defendant Goodman liable in her supervisory
position as the SOCF Health Care Administrator for the actions of other SOCF medical staff
employees, supervisory officials cannot be held liable under § 1983 solely on the basis of
respondeat superior or on the basis that they failed to remedy a subordinate’s unconstitutional
conduct. Shehee v. Lutrell, 199 F.3d 295, 300 (6th Cir. 1999). See also Wingo v. Tennessee
Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (citing Polk Cnty. v. Dodson, 454 U.S.
312, 325 (1981)). For these reasons, plaintiff fails to state a claim for relief against defendant
Goodman for any alleged shoulder reinjury in 2017. Defendant Goodman’s motion to dismiss
(Doc. 7) should be granted in its entirety.
IV. Conclusion
Based on the foregoing, it is RECOMMENDED that:
1. Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(6) (Doc. 7) be GRANTED.
2. Defendant’s motion to dismiss for lack of prosecution (Doc. 10) be DENIED as MOOT.

Date: _ 9/24/2020 Herm K Kithov2-
Karen L. Litkovitz
United States Magistrate Judge

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DERRICK OLIPHANT, Case No. 1:19-cv-00662
Plaintiff Black, J.
Litkovitz, M.J.
v.

MRS. GOODMEN,
Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
WITHIN 14 DAYS after being served with a copy thereof. 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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376419. Public record. Not legal advice.