White v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERMEAL WHITE, Case No. 1:19-cv-1007

Plaintiff,

Dlott, J.

vs Bowman, M.J.

WARDEN RON ERDOS, et al.,

Defendants.

REPORT AND RECOMMENDATION

This civil action is now before the court on Defendant Cynthia Davis’ motion to

dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief can be granted. (Doc.18) and the parties’

responsive memoranda. (Docs. 20, 21).

I. Background and Facts

Plaintiff alleges that on August 17, 2019, he was an inmate at SOCF. (Doc. 1,

PageID # 2). Plaintiff claims that on August 17, 2019, he was moved from his cell on K-2

with “extreme force” used by Defendants John Doe. Plaintiff alleges Defendant Davis

failed to carry out her duties by placing Plaintiff on K-2 when she “knew Plaintiff was not

suppose[d] to be on that unit.” (Doc. 1, PageID # 8). Plaintiff claims as a result of

Defendants John Does’ actions he suffered a “snapped” elbow which makes it “hard for

him to move.” (Doc. 1, PageID # 6).

II. Analysis

A. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of

the claims. The court is required to construe the complaint in the light most favorable to

the Plaintiff, and accept all well-pleaded factual allegations in the complaint as true. See

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB Business Services, 135

F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept conclusions of law or

unwarranted inferences which are presented as factual allegations. Blackburn v. Fisk

University, 443 F.2d 121, 124 (6th Cir. 1974). A complaint must contain either direct or

reasonable inferential allegations that support all material elements necessary to sustain

a recovery under some viable legal theory. Lewis v. ACB, 135 F.3d at 405 (internal

citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (citations omitted); Association of Cleveland Fire Fighters v. City of

Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). Even though a complaint need not

contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a

right to relief above the speculative level on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Id. (citations omitted).

B. Liability Under Section 1983

To establish a claim under § 1983, two elements are required: (1) conduct

committed by a person acting under the color of state law that (2) deprives a plaintiff of

rights, privileges, or immunities secured by the Constitution or the laws of the United

States. Gomez v. Toledo, 446 U.S. 635 (1980); Sargi v. Kent City Board of Educ., 70 F.3d

907, 913 (6th Cir.1995).

To state a §1983 claim, a plaintiff must allege not only that a person acting under

color of state law deprived the plaintiff of a right secured by the Constitution or federal

law, Flagg Bros. v. Brooks, 436 U.S. 149, 155-157 (1978), but also that the defendant is

personally responsible for the unconstitutional actions which injured him. Balderson v.

Mohr, No. 2:12-CV-235, 2012 U.S. Dist. LEXIS 60567, at *2 (S.D. Ohio May 1, 2012); see

also Heyerman v. Cnty. of Calhoun, 680 F.3d. 642, 647 (6th Cir. 2012) (“Persons sued in

their individual capacities under § 1983 can be held liable based only on their own

unconstitutional behavior.”); Murphy v. Grenier, 406 F. App’x 972 (6th Cir. 2011)

(“Personal involvement is necessary to establish section 1983 liability.”).

Notably, the collective acts of multiple defendants cannot be ascribed to an

individual defendant. Instead, the plaintiff must state a plausible constitutional violation

against each defendant. See Reilly v. Vadlamudi, No. 11-1251, 2012 U.S. App. LEXIS

10614, at *10 (6th Cir. 2012) (citing Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556,

564 (6th Cir. 2011)); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff

must plead that each Government official defendant, through the official’s own individual

actions, has violated the Constitution.”); Nwaebo v. Hawk-Sawyer, 83 F. App’x 85, 86 (6th

Cir. 2003) (“[A] complaint must allege that the defendants were personally involved in the

alleged deprivation of federal rights.” (citing Rizzo v. Goode, 423 U.S. 362, 371 (1976)).

Accordingly, “respondeat superior” or supervisory liability is not cognizable in a §

1983 action. “[A] supervisory official's failure to supervise, control or train the offending

individual is not actionable unless the supervisor ‘either encouraged the specific incident

of misconduct or in some other way directly participated in it. At a minimum a plaintiff must

show that the official at least implicitly authorized, approved, or knowingly acquiesced in

the unconstitutional conduct of the offending officers.’” Shehee v. Latrell, 199 F.3d 295,

300 (6th Cir. 1999), quoting Hays v. Jefferson Cty., Ky., 668 F.2d 869, 874 (6th Cir. 1982).

Furthermore, simple awareness followed by the failure to act will not impose liability under

§ 1983: “[L]iability under § 1983 must be based on active unconstitutional behavior and

cannot be based upon ‘a mere failure to act.’” Shehee, 199 F.3d at 300 (quoting

Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998)).

Here, Defendants’ contend that Plaintiff’s Complaint is deficient in several ways.

First, Plaintiff fails to adequately state a claim upon which relief may be granted against

Defendant Cynthia Davis. Plaintiff’s claims against all of the named Defendants are

vague, and unsupported by any specific factual allegations. As such, Defendant asserts

that Plaintiff’s claims of alleged deliberate indifference and negligence must fail as a

matter of law. Additionally, all of Plaintiff’s claims against the Defendant, Cynthia Davis,

are based solely on her supervisor position, and because respondeat superior is not

actionable under 42 U.S.C. §1983, those claims are barred. The undersigned agrees.

As detailed above, it is well established that a supervisory official cannot be held

liable under Section 1983 for the actions of subordinates on the basis of a respondeat

superior theory. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Monell v. Dep’t of

Soc. Servs. of New York, 436 U.S. 658, 691-95 (1978). “[T]he § 1983 liability of

supervisory personnel must be based on more than the right to control employees.

Section 1983 liability will not be imposed solely upon the basis of respondeat superior.”

Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citing Hays v. Jefferson Cnty., 668

F.2d 869 (6th Cir. 1982)).

“In order to establish liability pursuant to § 1983, the plaintiff must prove that the

defendant, as a supervisory official, is personally responsible for the alleged

unconstitutional actions that caused his injury.” Mills v. City of Barbourville, 389 F.3d 568,

580 (6th Cir. 2004). Further, “[s]upervisory liability under § 1983 cannot be based upon a

mere failure to act but must be based upon active unconstitutional behavior.” Combs v.

Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002) (citing Bass v. Robinson, 167 F.3d 1041,

1048 (6th Cir. 1999)).

Here, Plaintiff has not made the required showing as to Defendant Davis. Namely,

Plaintiff alleged that on August 17, 2019, Defendant Davis failed to carry out her duties

by placing Plaintiff on K-2 when she “knew Plaintiff was not suppose[d] to be on that unit.”

[Doc. 1, PageID # 8]. Plaintiff made no other specific factual allegations against Defendant

Davis. [See Doc. 1.] As such, Defendant argues that Plaintiff brings suit against

Defendant Davis based merely on her position; he alleges that it was other defendants,

John Does, who allegedly caused him harm. Thus, Plaintiff identifies no specific action

by Defendant Davis which caused his harm, and brings suit against her based merely on

an alleged general failure to prevent his harm.

In light of the foregoing, the undersigned finds that Defendant Bailey’s motion to

dismiss (Doc. 18) is well-taken and should be granted.

III. CONCLUSION

In light of the foregoing, IT IS RECOMMENDED THAT Defendant’s motion to

dismiss (Doc. 18) be GRANTED; and all claims against Defendant Cynthia Davis

be DISMISSED.1

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

1 Plaintiff filed an amended complaint on December 4, 2020. The undersigned recognizes that the filing of an

amended complaint generally moots a pending motion to dismiss. Yates v. Applied Performance Techs., Inc., 205

F.R.D. 497, 499 (S.D. Ohio 2002). See also Hartman, 2007 WL 915193, at *6 (holding that defendants’ motions to

dismiss the original complaint and the first amended complaint were moot given the subsequent filing of a

second amended complaint); Pethtel v. Washington County Sheriff's Office, No. 2:06–799, 2007 WL 2359765, at *5

(S.D. Ohio Aug. 16, 2007) (“because an amended complaint supersedes the original complaint, the filing of

an amended complaint normally moots a motion to dismiss the original complaint”). Here, however, the amended

complaint solely identifies the John Doe Defendants.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERMEAL WHITE, Case No. 1:19-cv-1007

Plaintiff,

Dlott, J.

vs Bowman, M.J.

WARDEN RON ERDOS, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. 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).