# Nelson v. Wiedimen

> District Court, S.D. Ohio · April 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10377749

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** April 30, 2021
- **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/10377749

## How later opinions describe it (automated extraction)

- applying “course of proceedings” test to determine that complaint named the defendant in his official capacity only
- applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377749. Public record. Not legal advice.