Shine-Johnson v. Mike Dewine

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSEPH SHINE-JOHNSON, et al.,

Plaintiffs,

Civil Action 2:20-cv-5919

v. Judge Sarah D. Morrison

Magistrate Judge Elizabeth P. Deavers

MIKE DEWINE, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is now before the Court for an initial screen of Plaintiffs’ Complaint, ECF

No. 1-1, under 28 U.S.C. §§ 1915(e)(2), 1915A to identify cognizable claims and to recommend

dismissal of Plaintiffs’ Complaint, or any portion of it, which is frivolous, malicious, fails to

state a claim 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. This matter is also before the Court

on Plaintiffs’ Motion to Appoint Counsel, ECF No. 4.

For the reasons that follow, the Undersigned RECOMMENDS that the Court DISMISS

Plaintiffs’ claims in their entirety. That recommendation notwithstanding, Plaintiff Goodson is

ADVISED that he has the right to file a separate action to pursue any claim(s) for medical

deliberate indifference that he believes he may have.

The Court also DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for the

Appointment of Counsel, ECF No. 4.

I.

According to the Complaint, Plaintiffs are sixteen inmates at Belmont Correctional

Institution (“BCI”) who each allege that Defendants are not adhering to proper social distancing

and other public health-related protocols in light of the COVID-19 pandemic. (See generally

ECF No. 1-1.) Plaintiffs are not proceeding as a putative class, but rather they assert individual

claims against Defendants.1 Specifically, Plaintiffs allege that “[a]ll incarcerated people are at a

heightened risk of contracting the COVID-19 virus,” that “[a]ll said Plaintiffs have contracted

COVID-19 at least once and some twice and or are still experiencing the after effects of the

virus,” and “[a]ll [Plaintiffs] were denied treatment and quarantine because they did not exhibit a

fever or labored breathing.” (Id. at PAGEID ## 21, 29, ¶¶ 19, 59.) Plaintiffs allege that “[a]ll

Defendants that are staff at [BCI] tested positive for COVID-19,” and they claim that their

injuries “were caused by the Defendants’ lack of care.” (Id. at PAGIED ## 28, 30, ¶ 51, 60.)

Plaintiffs allege that “[d]ue to the negligence and [‘deliberate indifference’] [] of the

health and safety of inmates, and the failures of [all] said Defendant(s’) duties and [obligations],

which created the unsafe environment [and] health conditions by overcrowding,” Defendants

have violated Plaintiffs’ Eighth Amendment rights “by creating conditions that would create long

term physical and mental health conditions,” including death, due to COVID-19. (Id. at

PAGEID # 27, ¶ 44.) Plaintiffs further allege that “[h]ad the said Defendants been in

compliance[] with ACA standards and the Ohio Administrative Code, when the State of

1 In Plaintiffs’ Motion to Appoint Counsel, Plaintiffs submit that they “are similarly situated and

the court could decide since the plaintiffs are of the same class, to proceed this case as a class

action law suit.” (ECF No. 4 at PAGEID # 103.) Plaintiffs’ Complaint, however, is devoid of

any allegations on behalf of a putative class. (ECF No. 1-1.) Therefore, to the extent Plaintiffs

intend to assert claims on behalf of a class, the Complaint is deficient. Fed. R. Civ. P. 8(a).

Emergency occurred, [BCI] would have been better prepared to prevent and maintain the spread

of COVID-19 within [BCI] and the community at large.” (Id. at PAGEID # 27, ¶ 45.)

Plaintiffs bring this action against the following eleven (11) Defendants, each in their

individual and official capacities: (1) Mike DeWine, Governor; (2) Amy Acton, State of Ohio

Department of Health Director; (3) Annette Chambers-Smith, Director of the Ohio Department

of Rehabilitation and Corrections (“ODRC”); (4) Ernie Moore, Deputy Director of the ODRC;

(5) Eddy Bobby, Regional Director of the ODRC; (6) Dr. Eddy Andrews, Medical Director of

the ODRC; (7) Karen Stanforth, Chief Medical Inspector; (8) David Gray, Warden of BCI; (9)

BCI Healthcare Administrator Murphy; (10) Patrick Haley, Institutional Inspector for BCI; and

(11) BCI Unit Manager Taylor. (Id. at PAGEID ## 19-20, ¶¶ 4-15.) Plaintiffs seek the

following relief: (a) a declaration that “the acts [and] omissions described herein [violated]

Plaintiff[s’] rights under the Constitution [and] laws of the United States”; (b) a preliminary and

permanent injunction “ordering all said Defendants . . . to eliminate the overcrowding of inmates

and reduce the population to the ACA standards for the Institution to which inmates are

incarcerated”; and (c) injunctive relief “to provide a compassionate release to said Plaintiffs from

custody and or allow for release with sanctions until all safe prison conditions are met and

COVID-19 pandemic subsides.” (Id. at PAGEID # 31, ¶¶ 71-73.)

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).

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

2 Formerly 28 U.S.C. § 1915(d).

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.

Plaintiffs bring their claims against Defendants under 42 U.S.C. § 1983, which provides

in relevant part 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 proceeding for redress[.]

Id. 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. See 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).

Here, Plaintiffs bring their claims against Defendants in their official and individual

capacities. (ECF No. 1-1 at PAGEID # 20, ¶ 15 (“Each of these Defendants is sued and in their

own individual and official capacity.”).) The Court will address each type of claim in turn.

A. Official Capacity Claims

“‘[A] suit against a state official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office,’ which is ‘no different from a suit against

the State.’” McCoy v. Michigan, 369 F. App’x 646, 654 (6th Cir. 2010) (quoting Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989)). The Eleventh Amendment of the United States

Constitution operates as a bar to federal court jurisdiction when a private citizen sues a state or

its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th Cir. 2000).

“It is well established that § 1983 does not abrogate the Eleventh Amendment.” Harrison v.

Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10, 2013) (citing Quern v.

Jordan, 440 U.S. 332, 341 (1979)). Because Ohio has not waived its sovereign immunity in

federal court, it is entitled to Eleventh Amendment immunity from suit for monetary damages.

Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Here, however, Plaintiffs do not seek

monetary damages. (See ECF No. 1-1 at PAGEID # 31, ¶¶ 71-73.)

There is an exception to the state sovereign immunity rule, “if an official-capacity suit

seeks only prospective injunctive or declaratory relief.” Shine-Johnson v. Gray, No. 2:19-cv-

5395, 2020 WL 3036072, at *3 (S.D. Ohio June 5, 2020) (citing Cady v. Arenac Cty., 574 F.3d

334, 344 (6th Cir. 2009); Papasan v. Allain, 478 U.S. 265, 276 (1986)); see also Mitchell v. Ohio

State Univ., No. 2:19-cv-4162, 2020 WL 5250459, at *6 (S.D. Ohio Sept. 3, 2020). Here,

Plaintiffs seek: (a) a declaration that “the acts [and] omissions described herein [violated]

Plaintiff[s’] rights under the Constitution [and] laws of the United States”; (b) a preliminary and

permanent injunction “ordering all said Defendants . . . to eliminate the overcrowding of inmates

and reduce the population to the ACA standards for the Institution to which inmates are

incarcerated”; and (c) injunctive relief “to provide a compassionate release to said Plaintiffs from

custody and or allow for release with sanctions until all safe prison conditions are met and

COVID-19 pandemic subsides.” (ECF No. 1-1 at PAGEID # 31, ¶¶ 71-73.) Accordingly, the

exception to the state sovereign immunity rule may apply. The Court will analyze Plaintiffs’

claims to determine if the exception applies to any of the Defendants.

1. Defendant DeWine

Plaintiffs’ allegations against Defendant DeWine are limited. At the outset, Plaintiffs

allege that Defendant DeWine “announced the existence of COVID-19’s community spread . . .

and restricted large gatherings within Ohio.” (ECF No. 1-1 at PAGEID # 20, ¶ 16.) Plaintiffs

then allege that Defendant DeWine, along with the other Defendants, violated O.R.C. § 2921.44,

which states in relevant part:

(C) No officer, having charge of a detention facility, shall negligently do any of the

following:

(1) Allow the detention facility to become littered or unsanitary;

(2) Fail to provide persons confined in the detention facility with adequate

food, clothing, bedding, shelter, and medical attention;

(3) Fail to control an unruly prisoner, or to prevent intimidation of or

physical harm to a prisoner by another;

(4) Allow a prisoner to escape;

(5) Fail to observe any lawful and reasonable regulation for the management

of the detention facility.

(Id. at PAGEID # 23, ¶ 27 (citing Ohio Rev. Code § 2921.44).) Further, reading the Amended

Complaint liberally, it appears the Plaintiffs reference Defendant DeWine by alleging that the

Defendants, collectively, “create [or] enforce policies” that serve as the basis of their claims. (Id.

at PAGEID # 28, ¶ 50.) This last allegation is critical, as it appears that Plaintiffs seek to assert

claims against Defendant DeWine because he “create[d]” certain policies or restrictions in

response to the COVID-19 pandemic. (Id.)

Such allegations are insufficient to state a claim against Defendant DeWine, because

Plaintiffs have failed to allege that Defendant DeWine has any specific connection to the actions

which Plaintiffs contend are unconstitutional. Construing the Complaint liberally in Plaintiffs’

favor, the Court can only discern that Plaintiffs implicate Defendant DeWine based on his

general supervisory powers as the Governor of Ohio. “This Court, and others, have already

found such general supervisory powers insufficient to subject a state official to suit.” Smith v.

DeWine, 476 F. Supp. 3d 635, 654 (S.D. Ohio 2020) (dismissing claims against Defendant

DeWine where “Plaintiffs have failed to plead the Governor’s responsibility for the direct

enforcement over the ODRC’s policies beyond his general executive authority.”) (collecting

cases). “While the Governor may direct broad policy initiatives to various state agencies such as

the ODRC, those agencies retain responsibility for direct enforcement of those policies.” Id. at

654. Accordingly, it is RECOMMENDED that Plaintiffs’ claims against Defendant DeWine in

his official capacity be DISMISSED.

2. Remaining Defendants

Plaintiffs also assert claims against Defendants Acton, Chambers-Smith, Moore, Bobby,

and Andrews (collectively, the “State Defendants”), and Defendants Stanforth, Gray, Murphy,

Haley, and Taylor (collectively, the “BCI Defendants”). For the most part, however, Plaintiffs’

allegations do not refer to any of these Defendants by name, as Plaintiffs instead discuss the

conditions at BCI in general terms. Plaintiffs allege that COVID-19 has spread to Plaintiffs (and

other inmates at BCI) because prison officials do not properly test, isolate, or quarantine infected

individuals (including, but not limited to, Defendant Gray, the Warden of BCI. (Id. at PAGEID

# 22, ¶¶ 21-25.) Plaintiffs allege that social distancing protocols are not followed, both in the

inmates’ living spaces and in the common areas of BCI, which Plaintiffs allege violates various

provisions of the Ohio Administrative Code. (Id. at PAGEID ## 23-25.) Plaintiffs also allege

that the Defendants have improperly denied inmates from scheduling chronic care medical

appointments and most dental appointments. (Id. at PAGEID # 26, ¶ 38.)3 Plaintiffs further

allege that the Defendants did not issue masks and mandate handwashing until April 2020, and

that housing units are not provided with proper or adequate cleaning materials. (Id. at PAGEID

# 28, ¶¶ 49, 53.)

3 Plaintiffs do not allege that they have been denied chronic care medical appointments or dental

appointments. The Complaint, however, attaches a sworn Declaration by Plaintiff Goodson.

(See ECF No. 1-1 at PAGEID ## 47-51.) It appears that approximately eight (8) paragraphs are

missing from Plaintiff Goodson’s Declaration, but from what the Court can review it appears that

Plaintiff Goodson alleges having been denied medical treatment for a lung condition. (Id. at

PAGEID # 51, ¶¶ 16-20.) It is unclear from Plaintiff Goodson’s Declaration, however, whether

he has been denied the “chronic care” medical appointments referenced in Plaintiffs’ Complaint.

Notwithstanding the Undersigned’s recommendation to dismiss Plaintiffs’ claims in their

entirety, Plaintiff Goodson is ADVISED that he has the right to file a separate action to pursue

any claim(s) for medical deliberate indifference that he believes he may have.

For these reasons, Plaintiffs allege that Defendants “purposely and with ‘deliberate

indifference’ choose to allow COVID-19 to run its course with uncertainty.” (Id. at PAGEID #

29, ¶ 56.) Plaintiffs allege that “[t]his has resulted in deaths within the inmate population as well

as [prison] staff as well as cases of inmates living with the long term effects of an infection from

COVID-19 with no medical care or monitoring of potential long term health concerns.” (Id.)

Thus, Plaintiffs allege that the Defendants have violated Plaintiffs’ Eighth Amendment rights, by

being deliberately indifferent to Plaintiffs’ health concerns, and by “creating conditions that

would create long term physical and mental health concerns leading to infection with or possible

death from COVID-19.” (Id. at PAGEID ## 27, ¶¶ 44.)

The Eighth Amendment protects all people from “cruel and unusual punishments.” U.S.

Const. amend. VIII. As the United States Court of Appeals for the Sixth Circuit recently noted:

[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well being . . . . The rationale for this

principle is simple enough: when the State by the affirmative exercise of its power

so restrains an individual's liberty that it renders him unable to care for himself, and

at the same time fails to provide for his basic human needs—e.g., food, clothing,

shelter, medical care, and reasonable safety—it transgresses the substantive limits

on state action set by the Eighth Amendment . . . .

Wilson v. Williams, 961 F.3d 829, 839 (6th Cir. 2020) (citing Helling v. McKinney, 509 U.S. 25,

32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (quoting DeShaney v. Winnebago Cty. Dep't of Soc.

Servs., 489 U.S. 189, 199–200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989))).

“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit

inhumane ones, and . . . ‘the treatment a prisoner receives in prison and the conditions under

which he is confined are subject to scrutiny under the Eighth Amendment.’” Farmer v. Brennan,

511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (first quoting Rhodes v. Chapman,

452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), then quoting Helling, 509 U.S. at 31).

“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate

violates the Eighth Amendment.” Id. at 828.

The Eighth Amendment’s deliberate indifference framework includes both an objective

and subjective prong. Id. at 834; Helling, 509 U.S. at 35–37. To satisfy the objective prong, an

inmate must show “that he is incarcerated under conditions posing a substantial risk of serious

harm.” Farmer, 511 U.S. at 834. Here, the objective component of Plaintiffs’ deliberate

indifference claim plainly has been met, for reasons this Court previously has discussed:

This Court agrees with the other district courts across the country [that] have found

COVID-19 to be an objectively intolerable risk of harm to prisoners when it enters

a prison. “There is no doubt that infectious diseases generally and COVID-19

specifically can pose a risk of serious and fatal harm to prison inmates.” Valentine

v. Collier, 956 F.3d 797, 802 (5th Cir. 2020); see also Wilson v. Williams, No. 4:20-

cv-794, ––– F.Supp.3d ––––, ––––, 2020 WL 1940882, at *8, 2020 U.S. Dist.

LEXIS 70674, at *19–20 (N.D. Ohio Apr. 22, 2020) (finding petitioners obviously

satisfied the objective requirement stating “[a]t this moment a deadly virus is

spreading amongst [the prison] population and staff,” which can lead to pneumonia,

diminished oxygen, organ failure, and death.); Money, 453 F.Supp.3d at ––––, 2020

WL 1820660 at *18 (noting that that “nobody contests the serious risk that COVID-

19 poses to all inmates and prison staff, and even more to the most vulnerable

inmates”); Wilson v. Williams, 961 F.3d 829, 842 (6th Cir. 2020) (finding a

substantial risk of serious harm satisfying the objective element of the Eighth

Amendment based on the conditions in an Ohio prison in light of COVID-19).

Smith, 476 F.Supp.3d at 662; see also Perez-Perez v. Adducci, 459 F. Supp. 3d 918, 926–27

(E.D. Mich. 2020) (“No one can deny that the health risks caused by the pandemic are grave.

Objectively, the health risks posed by COVID-19 are abundantly clear. The novel coronavirus

(COVID-19) is a respiratory disease that can result in serious illness or death.”).

The subjective component, on the other hand, requires inmates to show that prison

officials knew of and disregarded an excessive risk, thereby acting with deliberate indifference.

Smith, 476 F.Supp.3d at 661 (citing Farmer, 511 U.S. at 834, 837-38). Under the subjective

prong, an official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety.”

Farmer, 511 U.S. at 837. “[I]t is enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting

or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is

the equivalent of recklessly disregarding that risk.” Id. at 836. Thus, prison officials who knew

of “a substantial risk to inmate health or safety may be found free from liability if they responded

reasonably to the risk, even if the harm ultimately was not averted.” Wilson, 961 F.3d at 840

(citing Farmer, 511 U.S. at 844). The key inquiry is whether prison officials responded

reasonably to the risk. Id.

Against this backdrop, it is noteworthy that Plaintiffs do not include specific allegations

against any of the State Defendants individually. As for the BCI Defendants, Plaintiffs generally

allege that each of the BCI Defendants “tested positive for COVID-19,” but the only BCI

Defendants against whom Plaintiffs assert individual allegations are Defendants Gray and Haley.

(ECF No. 1-1 at PAGEID # 28, ¶ 51.) Specifically, Plaintiffs allege that Defendant Gray “tested

positive for COVID-19 and is directly responsible for passing the virus to his staff and

consequently to the Plaintiffs and other inmates,” and that Defendant Gray has not “reduce[d] the

population . . . to meet the social distancing requirements” despite a direct order from Defendant

Bobby to do so. (Id. at PAGEID ## 22, 29, ¶¶ 22, 57.) Plaintiffs also allege that Defendant

Haley has expressed “his belief that COVID-19 actually began in [BCI] sometime in the month

of November 2019,” and “that the masks and hand washing do nothing.” (Id. at PAGEID # 28,

¶¶ 48-49.)

Plaintiffs’ allegations are insufficient to meet the subjective component of Plaintiffs’

official capacity claims as a matter of law. This Court previously has held that claims based on

the “protective measures taken to protect against the spread of the virus,” in the absence of

allegations that any of the Defendants exhibited deliberate indifference to plaintiffs’ exposure to

COVID-19, do not rise to a deliberately indifferent unreasonable failure to act:

Plaintiffs in this case have failed to allege facts from which the Court can infer a

violation of their Eighth Amendment rights. Although the Court is sympathetic to

plaintiffs’ concerns regarding COVID-19, neither plaintiff asserts that any named

defendant exhibited deliberate indifference to either inmate's exposure to COVID-

19. Plaintiffs’ general conclusory allegation that the prison system is ill-

equipped for social distancing or protecting inmates is insufficient to state a

claim. See Iqbal, 556 U.S. at 678. Furthermore, although plaintiffs allege that

defendants were negligent in their response to the virus, negligence is

insufficient to state an Eighth Amendment claim. See Brooks v. Celeste, 39 F.3d

125, 127 (6th Cir. 1994). Plaintiffs have otherwise failed to allege facts suggesting

that defendants disregarded the risks associated with COVID-19 or were otherwise

deliberately indifferent to their health or safety. To the contrary, as noted above,

plaintiffs complain about numerous protective measures taken to protect against the

spread of the virus, maintaining that such measures also violate their constitutional

rights. Accordingly, the allegations in the complaint are insufficient to state an

actionable claim under the Eighth Amendment.

McCrary v. DeWine, No. 1:20-CV-388, 2021 WL 320737, at *4 (S.D. Ohio Feb. 1, 2021)

(emphasis added; internal footnote omitted). Supporting this conclusion is the fact that “the

CDC's own guidance ‘presupposes that some modification of its social-distancing

recommendations will be necessary in institutional settings.’” Blackburn v. Noble, No. 3:20-cv-

46, 2020 WL 4758358, at *6 (E.D. Kent. Aug. 17, 2020) (citing Swain v. Junior, 958 F.3d 1081,

1089 (11th Cir. 2020)). Further,

the fact that COVID-19 has spread among [] inmates does not establish . . . the

necessary state of mind to satisfy the subjective deliberate indifference prong

as to the safety measures implemented to protect inmates from COVID-19. See

Farmer, 511 U.S. at 844, 114 S.Ct. 1970 (the fact that “the harm ultimately was not

averted” does not demonstrate deliberate indifference); Wilson, 961 F.3d at 841

(finding “while the harm imposed by COVID-19 on inmates at Elkton ultimately

[is] not averted, the BOP has responded reasonably to the risk and therefore has not

been deliberately indifferent to the inmates’ Eighth Amendment rights,” noting

evidence that the BOP took preventative measures, including screening for

symptoms, educating staff and inmates about COVID-19, cancelling visitation,

quarantining new inmates, implementing regular cleaning, providing disinfectant

supplies, providing mask, and engaging in efforts to expand testing “demonstrate

the opposite of a disregard of a serious health risk”) (internal quotations and

citations omitted).

Id. at *7 (emphasis added; internal footnote omitted).

To that end, this Court has found that Defendant Chambers-Smith, Director of the

ODRC, acted reasonably in responding to the COVID-19 pandemic and engaged in “an

extensive effort to combat this new disease and protect the prisoners’ health and safety”:

It is clear that the Director was aware of the risk COVID-19 presented based on her

statements about the disease and the extensive actions she took in response. The

key question is whether the Director “responded reasonably to th[is] risk.” Wilson,

961 F.3d at 840 (citing Farmer, 511 U.S. at 844, 114 S.Ct. 1970). Importantly, the

resultant harm, while serious and concerning, does not establish a liable state of

mind. See Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (finding the

district court incorrectly “treated an increase in COVID-19 infections as proof that

the defendants deliberately disregarded an intolerable risk”). Putting aside the

resultant harm, the evidence shows the Director responded reasonably to the risk.

The Director began preparing for the introduction of COVID-19 into Ohio's prisons

before COVID-19 was even confirmed in the United States. (Def. Director Resp.

Prelim. Inj. at Ex. A, ¶ 8.) After COVID-19 entered the United States and then

Ohio's prison system, the Director continued to coordinate a response among all of

ODRC's facilities which included educating staff and inmates, tracking and

distributing PPE, implementing social distancing measures among staff and

inmates, increasing cleaning and sanitizing, screening visitors, staff, and inmates,

cancelling visitation, quarantining those with symptoms, and implementing other

policies designed to prevent COVID-19's spread. (See id.) The Sixth Circuit has

previously held actions such as these a reasonable response. See e.g., Wilson, 961

F.3d at 840 (finding the Bureau of Prisons’ response to COVID-19 including

screening for symptoms, educating staff and inmates, cancelling visitation,

quarantining new inmates, implementing cleaning, providing disinfectant, and

more, a reasonable response); Wooler v. Hickman Cnty., 377 F. App'x 502, 506 (6th

Cir. 2010) (holding a jail nurse's actions of cleaning every cell, quarantining

infected inmates, and distributing information about a bacterial disease precluded a

finding of deliberate indifference).

Other courts around the country have also found similar actions taken in response

to COVID-19 enough to preclude a finding of deliberate indifference. See e.g.,

Valentine, 956 F.3d at 802 (noting that the prison officials took measures

recommended by the CDC and the plaintiffs offered no evidence they subjectively

believed those actions were inadequate); Swain, 958 F.3d at 1089 (noting that

neither the resultant harm in COVID-19 infections or the inability to achieve social

distancing constituted a state of mind more blameworthy than negligence); Money,

453 F.Supp.3d at ––––, 2020 WL 1820660 at *18 (finding the plaintiffs did not

have a chance of success on this claim because the prison officials had come forth

with a lengthy list of actions they had taken to try and protect inmates from COVID-

19 and “the record simply [did] not support any suggestion that [the defendants]

ha[d] turned the kind of blind eye and deaf ear to a known problem that would

indicate ‘total unconcern’ for the inmates’ welfare” (citing Rosario v. Brawn, 670

F.3d 816, 821 (7th Cir. 2012))). There is no evidence that the Director subjectively

believed her actions were inadequate or that she indicated a total concern for the

inmates’ welfare.

Smith, 476 F.Supp.3d at 663. The Court takes judicial notice of those findings here, and extends

those findings to the Defendants in this case:

“[I]t is well-settled that federal courts may take judicial notice of proceedings in

other courts of record.” United States v. Mont, 723 Fed. Appx. 325, 327 n.3 (6th

Cir. 2018) (citing Lyons v. Stovall, 188 F.3d 327, 332, n.3 (6th Cir. 1999) (brackets,

quotation marks, and citation omitted)). While this doctrine typically does not

extend to the factual findings of another court, notice may be taken of “proceedings

in other courts . . . if those proceedings have a direct relation to matters at issue.”

United States v. Neal, 577 Fed. Appx. 434, 452 n. 11 (6th Cir. 2014) (quoting

United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d

244, 248 (9th Cir. 1992) (ellipsis and emphasis in original)).

Schneider v. Credit Human Federal Credit Union, No. 4:20-cv-1747, 2021 WL 147050, at *1

n.2 (N.D. Ohio Jan. 15, 2021).

Although Plaintiffs may disagree with the sufficiency of Defendants’ actions in response

to COVID-19, they have not alleged facts sufficient to demonstrate that the Defendants acted

with “deliberate indifference” within the meaning of the Eighth Amendment. Accordingly, it is

RECOMMENDED that Plaintiffs’ official capacity claims be DISMISSED in their entirety.

B. Individual Capacity Claims

Next, the Court turns to whether Plaintiffs have plausibly alleged claims against

Defendants in their individual capacities. As a preliminary matter, the Court notes that despite

asserting claims against each Defendant in their “personal capacities,” the Complaint does not

contain any specific allegations that Defendant DeWine or any of the State Defendants was

personally involved in any alleged violation of Plaintiffs’ rights, which is required to state a §

1983 individual capacity claim. Cline v. Wiedimen, No. 2:21-CV-112, 2021 WL 123006, at *5

(S.D. Ohio Jan. 13, 2021), report and recommendation adopted, No. 21CV-112, 2021 WL

391724 (S.D. Ohio Feb. 4, 2021). Accordingly, it is RECOMMENDED that any individual-

capacity claims against Defendant DeWine and the State Defendants be DISMISSED.

Regarding the BCI Defendants, the Complaint only identifies Defendants Gray and Haley

as having any personal involvement in Plaintiffs’ claims. While Plaintiffs generally allege that

each of the BCI Defendants “tested positive for COVID-19,” merely testing positive for COVID-

19 does not rise to the level of personal involvement needed to state a claim upon which relief

can be granted. (ECF No. 1-1 at PAGEID # 28, ¶ 51.) Plaintiffs also allege that they “[a]ll . . .

have contracted COVID-19 at least once” and “[a]ll were denied treatment,” but Plaintiffs do not

connect such allegations to Defendants Stanforth, Murphy, or Taylor individually. (Id. at

PAGEID # 29, ¶ 59.) Accordingly, it is RECOMMENDED that any individual-capacity claims

against Defendants Stanforth, Murphy, and Taylor be DISMISSED. Plaintiffs’ individual-

capacity claims against Defendants Gray and Haley, however, merit further analysis.

“The [Eighth] Amendment . . . imposes duties on [prison] officials, who must provide

humane conditions of confinement; prison officials must ensure that inmates receive adequate

food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the

safety of the inmates . . . .” Farmer, 511 U.S. at 932-33 (internal quotation marks and citations

omitted); see also Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200) (holding that the

Eighth Amendment “requires that inmates be furnished with the basic human needs, one of

which is ‘reasonable safety’”).

Such claims under the Eighth Amendment require a plaintiff “to prove both the

subjective and objective elements necessary to prove an Eighth Amendment violation.” Helling,

509 U.S. at 35. To satisfy the objective component for a claim based upon a failure to prevent

harm, “the inmate must show he is incarcerated under conditions posing a substantial risk of

serious harm.” Farmer, 511 U.S. at 834 (citations omitted). “To satisfy the subjective

component, an inmate must show that prison officials had a sufficiently culpable state of mind.”

Berksire v. Beauvais, 928 F.3d 520, 535 (6th Cir. 2019) (internal quotation marks and citations

omitted). The United States Court of Appeals for the Sixth Circuit has explained as follows:

[T]hat state of mind is one of deliberate indifference to inmate health or safety.

Although the deliberate indifference standard describes a state of mind more

blameworthy than negligence, this standard is satisfied if the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.

Id. (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (internal quotation marks and

citations omitted)).

Again, the objective prong is satisfied here as “[t]he COVID-19 virus creates a

substantial risk of serious harm leading to pneumonia, respiratory failure, or death.” Wilson, 961

F.3d at 840. Plaintiffs have failed, however, to allege facts upon which the Court could rely to

conclude the subjective prong is satisfied for Plaintiffs’ claims against Defendants Gray or

Haley. In fact, neither the Complaint nor the exhibits to Plaintiff's Complaint provide

information or context from which the Court could reasonably infer that either Defendant Gray

or Defendant Haley was personally involved in any alleged violation of Plaintiffs’ rights. See

Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted); Everson v. Leis, 556 F.3d

484, 495 (6th Cir. 2009) (to hold a supervisor liable under § 1983, a plaintiff “must show that the

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

conduct”) (internal quotation omitted).

With respect to Defendant Gray, for example, Plaintiffs merely allege that he “tested

positive for COVID-19 and is directly responsible for passing the virus to his staff and

consequently to the Plaintiffs and other inmates,” and that he has not “reduce[d] the population .

. . to meet the social distancing requirements” despite a direct order from Defendant Bobby to do

so. (ECF No. 1-1 at PAGEID ## 22, 29, ¶¶ 22, 57.) Even assuming, arguendo, that Defendant

Gray was “responsible” for passing COVID-19 to others, Plaintiffs have failed to allege that

Defendant Gray had a sufficiently culpable state of mind. Similarly, with respect to Defendant

Haley, Plaintiffs merely allege that he expressed “his belief that COVID-19 actually began in

[BCI] sometime in the month of November 2019,” and “that the masks and hand washing do

nothing.” (Id. at PAGEID # 28, ¶¶ 48-49.) Even taking Plaintiffs’ allegations as true, Plaintiffs

have failed to allege that Defendant Haley could have violated Plaintiffs’ rights by expressing

such things. In short, Plaintiffs’ allegations fail to demonstrate that Defendants Gray and Haley

consciously disregarded a serious risk of harm to Plaintiff. See Cameron v. Bouchard, 815 F.

App'x 978, 984 (6th Cir. 2020) (“The official must have a subjective ‘state of mind more

blameworthy than negligence,’ akin to criminal recklessness.”) (quoting Farmer, 511 U.S. at

835, 938-40).

Because Plaintiffs have failed to plausibly allege that any of the Defendants acted or

failed to act with deliberate indifference as required to demonstrate the subjective component of

an Eighth-Amendment claim, it is RECOMMENDED that any individual-capacity claim

Plaintiffs intended to advance be DISMISSED pursuant to § 1915(e)(2).

IV.

This matter is also before the Court for consideration of Plaintiffs’ Motion to Appoint

Counsel, ECF No. 4. Although this Court has statutory authority under 28 U.S.C. § 1915(e) to

appoint counsel in a civil case, appointment of counsel is not a constitutional right. Lavado v.

Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (citation omitted). Rather, “[i]t is a privilege that is

justified only by exceptional circumstances.” Id. at 606. The Court has evaluated whether such

exceptional circumstances exist in this case and determines that the appointment of counsel is not

warranted at this juncture. Accordingly, Plaintiffs’ Motion to Appoint Counsel, ECF No. 4, is

DENIED WITHOUT PREJUDICE.

V.

For these reasons, the Undersigned RECOMMENDS that the Court DISMISS

Plaintiffs’ claims in their entirety. That recommendation notwithstanding, Plaintiff Goodson is

ADVISED that he has the right to file a separate action to pursue any claim(s) for medical

deliberate indifference that he believes he may have.

The Court also DENIES WITHOUT PREJUDICE Plaintiffs’ Motion for the

Appointment of Counsel, ECF No. 4.

The Clerk is DIRECTED to send a copy of this Order to the Ohio Attorney General’s

Office, Corrections Litigation Department, 150 E. Gay Street, 16th Floor, Columbus, Ohio

43215.

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)).

IT IS SO ORDERED.

Date: April 12, 2021 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE