Nelson v. Wiedimen

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANTHONY LEVI NELSON,

Plaintiff,

Civil Action 2:21-cv-1177

v. Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

MATTHEW T. WEIDIMEN, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Anthony Levi Nelson, an Ohio inmate who is proceeding without the assistance

of counsel, brings this civil rights action under 42 U.S.C. § 1983, asserting claims against Fayette

County Jail Administrator Matthew T. Weidimen, Fayette County Court of Common Pleas Judge

Steven P. Beathard, and Fayette County Jail Nurse Darci Moore (collectively “Defendants”),

alleging that the Fayette County Jail failed to take sufficient precautions to prevent him from

being exposed to the COVID-19 virus. This matter is before the Court for the initial screen of

Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 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 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); see also McGore v.

Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the

reasons that follow, the undersigned RECOMMENDS that the Court DISMISS this action

pursuant to §§ 1915(e)(2) and 1915A for failure to state a claim on which relief may be granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF

No. 1.) Plaintiff is required to pay the full amount of the Court’s $402 filing fee. 28 U.S.C.

§ 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he cannot pay the filing fee

because he currently possesses no money in his prison account.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts at

Fayette County Jail is DIRECTED to submit to the Clerk of the United States District Court for

the Southern District of Ohio as an initial partial payment, 20% of the greater of either the

average monthly deposits to the inmate trust account or the average monthly balance in the

inmate trust account, for the six-months immediately preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00 until the full fee of $402.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check.

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It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff

and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order

to the Court’s financial office in Columbus.

I.

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) 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; [or]

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

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. See

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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)).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements

set forth in Federal Rule of Civil Procedure 8(a). 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). 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)). Further, 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) of the Federal Rules of Civil Procedure, “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. In considering whether this facial plausibility standard is met, a Court must

construe the complaint in the light most favorable to the non-moving party, accept all factual

allegations as true, and make reasonable inferences in favor of the non-moving party. Total

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.

2008) (citations omitted). The Court is not required, however, to accept as true mere legal

conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555). In addition, the Court holds pro se complaints “to less stringent standards than

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formal pleadings drafted by lawyers.” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,

2010 WL 1252923, at *2 (6th Cir. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972). See also Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).

II.

Plaintiff’s Complaint alleges that Defendants’ failure to follow health guidelines put him

and other inmates at risk of contracting COVID-19. (Compl., ECF No. 1-1 at PAGEID #15.)

Plaintiff alleges that he was not tested or quarantined properly on intake, and that inmates were

not given proper medical care. (Id.) Plaintiff appears to allege that he contracted COVID-19 or

is at least suffering stress and anxiety from potentially contracting it, among other health

concerns. (See id. at PAGEID #41.) Plaintiff further alleges that inmate mail was held back, that

inmate correspondence to their attorneys was sent to incorrect email addresses, and that resulting

inmate grievances went unanswered. (Id. at PAGEID #15.) Plaintiff asks that all parties

involved be reprimanded, that all staff be properly trained and educated on COVID-19, and that

inmates are given proper medical attention. (See id. at PAGEID #16.) Plaintiff further seeks

$3,000,000 from the Fayette County Jail for putting his life, and others, in danger. (See id. at

PAGEID #41.)

Plaintiff attaches several documents to his complaint (See id. at PAGEID ##17–40), the

first being what appears to be a COVID-19 test taken by Plaintiff on November 8, 2020. (See id.

at PAGEID #17.) Plaintiff also attaches lists of COVID protocol violations by jail staff (such as

failure to wear gloves or masks). (See id. at PAGEID ##18–20, 26–40.) Plaintiff attaches

several letters to Defendant Moore signed by Plaintiff and other inmates, listing various

complaints about testing and quarantine, and claiming administration is not following proper

governmental guidelines. (See id. at PAGEID #21–24.) Plaintiff attaches a document written by

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him for another lawsuit related to similar claims, also alleging lack of proper training and a

violation of inmates’ rights. (See id. at PAGEID #25.) In the document, Plaintiff alleges

Defendant Wiedimen denied his request for documents regarding governmental COVID-19

guidelines. (Id.) Plaintiff alleges that though he was arrested on October 4, 2020, he was not

tested until November 6, 2020, and that Defendant Weidimen was aware that jail staff had

contracted COVID-19 yet did not make any changes until it was too late, with proper guidelines

still not being followed. (Id.)

III.

The undersigned construes Plaintiff’s Complaint as seeking to advance a conditions-of-

confinement claim under the Eight Amendment.1

As a threshold matter, although Plaintiff has not designated the capacity in which he is

suing Defendants, it appears that he intends to advance official-capacity claims as he names

Fayette County Jail Administrator Weidimen, Judge Beathard, and Jail Nurse Moore, but his

allegations do not pertain to specific actions any particular Defendant took except for one by

Defendant Weidimen, and he does not seek monetary damages from any individual Defendant,

but from the Fayette County Jail. See Moore v. City of Harriman, 272 F.3d 769, 775 (6th Cir.

2001) (en banc), cert. denied, 536 U.S. 922 (2002) (holding that Ҥ 1983 plaintiffs must clearly

notify defendants of the potential for individual liability” and “clarify[ing] that reviewing the

course of proceedings is the most appropriate way to determine whether such notice has been

1 Plaintiff also makes passing references to the withholding of inmates’ mail and misdirection of

inmate correspondence with their attorneys. (Compl., ECF No. 1-1 at PAGEID #15.) To the

extent Plaintiff intends to advance a claim for violation of his First Amendment right to access

the courts, he has not advanced any non-conclusory allegations on which the Court could rely to

conclude that Defendants violated Plaintiff’s First Amendment rights.

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given”); Thomas v. Noder-Love, 621 F. App’x 825, 831 (6th Cir. 2015) (applying “course of

proceedings” test to determine that complaint named the defendant in his official capacity only);

United States ex rel Diop v. Wayne Cty. Cmty. College Dist., 242 F.Supp.2d 497, 517 (E.D.

Mich. 2003) (“Absent a clear notification that defendants are being sued in their individual

capacities, courts must assume that they are being sued in their official capacities, only.”).

Regardless of whether Plaintiff intended to advance these claims against Defendants in their

official or individual capacities, his claims fail.

A. Official-Capacity Claims

“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,’ individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir.

2003) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Thus, “[a] suit against an

individual in his official capacity is the equivalent of a suit against the governmental entity.”

Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Applied here, to the extent Plaintiff

intended to sue Defendants Weidman, Moore, and Beathard in their official capacities, such

claims are advanced against Fayette County.

“[A] local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execution of a government’s policy or custom . . .

inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978); Nichols v. Wayne Cty. Mich., 822 F. App’x 445, 448

(6th Cir. 2020) (“To state a municipal-liability claim under § 1983, the plaintiff must allege the

deprivation (1) of a right secured by the Constitution or laws of the United States, (2) that was

directly caused by a municipal policy or custom.” (citing Hardrick v. City of Detroit, 876 F.3d

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238, 243 (6th Cir. 2017)). A plaintiff may prove an unconstitutional “policy” or “custom” by

demonstrating one of the following: “(1) the existence of an illegal official policy or legislative

enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of

tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478

(6th Cir. 2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).

Here, Plaintiff has not alleged enough facts upon which the Court could rely to conclude

that the execution of an official policy or custom of Fayette County resulted in the violation of

his constitutional rights.2 Consequently, it is RECOMMENDED that any official-capacity

claims be DISMISSED pursuant to § 1915(e)(2). See Monell, 436 U.S. at 708; Moore v. CCNO

S. Health Partners, No. 3:20-cv-1278, 2020 WL 6729033, at *2 (N.D. Ohio Nov. 16, 2020)

(dismissing inmate’s Eighth-Amendment Monell claim premised upon COVID-19 exposure

against municipal defendant because plaintiff failed to identify and attack a policy of municipal

defendant).

B. Individual-Capacity Claims

Plaintiff has likewise failed to plausibly allege an Eighth-Amendment claim against

Defendants in their individual capacities.

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

2In fact, the exhibit Plaintiff attaches to his Complaint (see ECF No. 1-1 at PAGEID ##18–20) in

which he logs particular instances in which he or other inmates observed corrections officers

without masks and gloves suggests that procedures have, in fact, been implemented to prevent

the spread of the COVID-19 virus, and it appears that the log entries reflect instances in which

Plaintiff alleges nonparty corrections officers failed to follow those procedures. Furthermore, the

attached COVID-19 test result (Id. at 17) suggests Plaintiff was tested for COVID-19, contrary to

his allegation.

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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 v. Brennan, 511 U.S. 825, 932-33 (1994) (internal quotation

marks and citations omitted). See also Helling v. McKinney, 509 U.S. 25, 33 (1993) (quoting

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)) (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 the 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)).

Here, the objective prong is satisfied as “[t]he COVID-19 virus creates a substantial risk

of serious harm leading to pneumonia, respiratory failure, or death.” Wilson v. Williams, 961

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F.3d 829, 840 (6th Cir. 2020).

In contrast, Plaintiff has failed to allege facts upon which the Court could rely to

conclude the subjective prong is satisfied. Neither the Complaint nor the exhibits to the

Complaint provide content or context from which the Court could reasonably infer that

Defendants were personally involved in the alleged violations of Plaintiff’s rights, which is

required to state a § 1983 individual-capacity claim. 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 the exception of Defendant Weidimen’s statement that Plaintiff’s

request for a copy of governmental guidelines was rejected, no other allegations reflect personal

involvement of any Defendant in an alleged violation of Plaintiff’s rights. (Compl. ECF No. 1-1

at PAGEID #25.)

Because Plaintiff has failed to plausibly allege that the Defendants were personally

involved in any alleged violation of Plaintiff’s rights, it is RECOMMENDED that any

individual-capacity claim Plaintiff intended to advance be DISMISSED pursuant to

§ 1915(e)(2).

IV.

For the reasons set forth above, the undersigned RECOMMENDS that the Court

DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be

granted. In addition, Plaintiff’s motion to proceed in forma pauperis is GRANTED.

PROCEDURE ON OBJECTIONS

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If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §

636(b)(1).

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

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura __________

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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