Haithcock v. Wiedman

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHRISTOPHER DAVID HAITHCOCK,

Plaintiff,

Civil Action 2:20-cv-6317

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Elizabeth P. Deavers

MATT T. WIEDMAN, et al.,

Defendants.

ORDER and

REPORT AND RECOMMENDATION

Plaintiff Christopher David Haithcock, an Ohio resident proceeding without the

assistance of counsel, brings this action against Defendants Matthew T. Wiedman, Judge Steven

Beathard, and Darci Moore. This matter is before the Undersigned for an initial screen of

Plaintiff’s Complaint, ECF No. 1-1, 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),

1915A(b); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having

performed the initial screen, for the reasons that follow, it is RECOMMENDED that the Court

DISMISS this action. The Court also DENIES WITHOUT PREJUDICE Plaintiff’s request

for the appointment of counsel, ECF No. 8.

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)1 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).

1 Formerly 28 U.S.C. § 1915(d).

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)). 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)).

II.

Plaintiff, proceeding without the assistance of counsel, alleges that Defendants Matt

Wiedman, Judge Steven Beathard,2 and Darci Moore have “put[] [Plaintiff’s] life at risk” by not

2 The Court takes judicial notice that Defendant Judge Beathard is a Judge for the Fayette County

Court of Common Pleas. See Fayette County, Ohio website, “Common Pleas Court,” available

at: https://www.fayette-co-oh.com/government/courts/common_pleas_court.php; see also Fed.

R. Evid. 201(b) and (c) (a court “may take judicial notice on its own” of facts “not subject to

following “proper protocols” in response to the Covid-19 pandemic. (See generally ECF No. 1-

1.) Specifically, Plaintiff alleges that Defendant Wiedman “failed to prevent [Plaintiff] and

others [from Covid-19] with proper cleaning supplies, face masks, [and] no hand sanitizer,”

which Plaintiff alleges constitutes a violation of his Eighth Amendment Rights. (Id. at PAGEID

# 10.) Plaintiff also alleges that Defendant Judge Beathard “failed to release inmates from jail

that did not have Covid-19 [who] got tested and [were] negative.” (Id.) Finally, Plaintiff alleges

that Defendant Moore “failed to give [inmates] face masks, sanitizers, and proper cleaning

supplies,” that she worked with the Sheriff’s Department to place inmates who had Covid-19

with inmates who did not have Covid-19, and that she gave Plaintiff no medical attention when

Plaintiff was “sick and ill for days.” (Id.) Plaintiff does not expressly seek compensatory

damages, but he states that he “want[s] all parties to be punished,” and that he wants to make

sure that “if there’s another pandemic [people] will be treated fairly and [will] get the medical

attention they need.” (Id. at PAGEID # 12.) Plaintiff adds that “I just think proper protocols

should be handled at a professional level and it wasn’t,” and that “the defendants put my life and

others in jeopardy and it’s wrong and they need to pay.” (Id.)

Reading Plaintiff’s Complaint liberally, the Undersigned deciphers that Plaintiff brings

suit under 42 U.S.C. § 1983, arguing that Defendants, under color of law, violated his rights

secured by the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United

States Constitution. (ECF No. 1-1 at PAGEID ## 10 (alleging that Defendant Wiedman’s

actions constituted a “violation of [Plaintiff’s] 8th Amendment rights,” that his “8th Amendment

rights have been violated [in] multiple ways,” that Plaintiff’s “8th Amendment rights have been

violated” by Defendant Moore, and that he was subjected to “cruel and unusual punishment!”),

reasonable dispute because it . . . can be accurately and readily determined from sources whose

accuracy can not reasonably be questioned”).

12 (alleging that Defendants “violated [his] 8th Amendment rights”).) 42 U.S.C. § 1983

provides 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 proceedings 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).

As a threshold matter, Plaintiff does not allege that Defendants acted under color of state

law, but for purposes of this initial screen the Court assumes, arguendo, that Plaintiff did make

such allegations. Even if that were true, Plaintiff could not bring his claims against Defendants

in their official capacities, as “‘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, it is

unclear whether Plaintiff seeks monetary damages. (ECF No. 1-1 at PAGEID 12 (requesting that

Defendants “need to pay.”).) Accordingly, to the extent Plaintiff seeks monetary damages, it is

RECOMMENDED that Plaintiff’s claim for monetary relief be DISMISSED.

That recommendation notwithstanding, 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. CV 2:19-5395, 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) (“Official-capacity § 1983 claims are limited to

prospective injunctive relief.”). Here, Plaintiff arguably seeks declaratory and injunctive relief.

(ECF No. 1-1 at PAGEID # 12.) Specifically, Plaintiff requests that Defendants “get better

safety precautions so if there’s another pandemic [people] will be treated fairly and [will] get the

medical attention they need.” (Id.) Plaintiff also requests that “proper protocol should be

handled at a professional level.” (Id.) Because Plaintiff arguably seeks declaratory and

injunctive relief against the Defendants, the exception to the state sovereign immunity rule may

apply. The Court will analyze Plaintiff’s claims to see if the exception applies to any of the

Defendants.

A. Defendant Judge Beathard

Plaintiff alleges that Defendant Judge Beathard “failed to release inmates from jail that

did not have Covid-19 [who] got tested and [were] negative.” (ECF No. 1-1 at PAGEID # 10.)

Defendant Judge Beathard, however, is entitled to absolute judicial immunity as a state court

judge for the Fayette County Court of Common Pleas. Padgett v. Kentucky, No. 1:21-CV-12,

2021 WL 215647, at *3 (S.D. Ohio Jan. 21, 2021) (“Judges retain absolute immunity from

[Section 1983] liability even if they act maliciously or corruptly, as long as they are performing

judicial acts and have jurisdiction over the subject matter giving rise to the suit against them.”)

(citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Brookings v. Clunk, 389 F.3d 614, 617

(6th Cir. 2004); Stern v. Mascio, 262 F. 3d 600, 607 (6th Cir. 2001)).

Plaintiff’s claim against Defendant Judge Beathard also is barred by the Rooker-Feldman

doctrine, which “bars lower federal courts from conducting appellate review of final state-court

judgments.” Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012). Here, because the source of

Plaintiff’s purported injury is Defendant Judge Beathard’s state court decision not to release

inmates, this Court has no subject matter jurisdiction over Plaintiff’s claim. McCormick v.

Braverman, 451 F.3d 382, 393 (6th Cir. 2006) (“If the source of the injury is [a] state court

decision, then the Rooker–Feldman doctrine would prevent the district court from asserting

jurisdiction.”)

For these reasons, it is RECOMMENDED that Plaintiff’s claim against Defendant Judge

Beathard be DISMISSED.

B. Defendants Wiedman and Moore

With regard to Defendants Wiedman and Moore, the Court believes that Plaintiff makes

two claims. First, Plaintiff alleges that Defendants Wiedman and Moore failed to provide proper

cleaning supplies, face masks, and hand sanitizer, and that Defendant Moore “plac[ed] inmates

with Covid-19 with [people] [who] don’t,” which can be liberally construed as claims that

Defendants Wiedman and Moore were deliberate indifferent to a substantial risk of serious harm.

(ECF No. 1-1 at PAGEID # 10.) Second, Plaintiff alleges that Defendant Moore “gave

[Plaintiff] no medical attention and [Plaintiff] was sick and ill for days,” which can be liberally

construed as a claim that Defendant Moore acted with deliberate indifference toward Plaintiff’s

serious medical needs. (Id.) The Court will address these allegations in turn.

1. Deliberate Indifference.

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

Const. amend. VIII.

[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 (1994) (first quoting Rhodes v. Chapman, 452 U.S. 337, 349 (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 v. DeWine, 476 F.Supp.3d 635, 662 (S.D. Ohio 2020); 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, at 844). The key inquiry is whether prison officials responded reasonably to the

risk. Id. (citing Farmer, 511 U.S. at 844).

Against this backdrop, Plaintiff alleges that Defendants Wiedman and Moore failed to

provide proper cleaning supplies, face masks, and hand sanitizer. (ECF No. 1-1 at PAGEID #

10.) The Court finds that Plaintiff’s allegations are insufficient to meet the subjective component

of Plaintiffs’ Eighth Amendment claim 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)

(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 (footnote omitted).

Although Plaintiff may disagree with the sufficiency of the actions that Defendants

Weidman or Moore took in response to COVID-19, Plaintiff has not alleged facts sufficient to

demonstrate that Defendants Weidman or Moore acted with “deliberate indifference” within the

meaning of the Eighth Amendment. Accordingly, it is RECOMMENDED that Plaintiffs’

deliberate indifference claims against Defendants Weidman or Moore be DISMISSED in their

entirety.

2. Medical deliberate indifference.

Plaintiff also claims that Defendant Moore “gave [Plaintiff] no medical attention and

[Plaintiff] was sick and ill for days.” (ECF No. 1-1 at PAGEID # 10.) It is well established that

“[t]he Eighth Amendment forbids prison officials from unnecessarily and wantonly inflicting

pain on an inmate by acting with deliberate indifference toward [his or her] serious medical

needs.” Jones v. Muskegon County, 625 F.3d 935, 941 (6th Cir. 2010) (internal quotations and

citations omitted). A claim for medical deliberate indifference “has both objective and

subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The

United States Court of Appeals for the Sixth Circuit has explained as follows:

The objective component mandates a sufficiently serious medical need. [Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component

regards prison officials’ state of mind. Id. Deliberate indifference “entails

something more than mere negligence, but can be satisfied by something less than

acts or omissions for the very purpose of causing harm or with knowledge that harm

will result.” Id. at 895–96 (internal quotation marks and citations omitted). The

prison official must “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. at 896 (internal quotation marks and citation omitted).

Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). Where the risk of serious harm is

obvious, it can be inferred that the defendants had knowledge of the risk. Farmer, 511 U.S. at

842. The Sixth Circuit has also noted that in the context of deliberate indifference claims:

[W]e distinguish between cases where the complaint alleges a complete denial of

medical care and those cases where the claim is that a prisoner received inadequate

medical treatment. Where a prisoner alleges only that the medical care he received

was inadequate, federal courts are generally reluctant to second guess medical

judgments. However, it is possible for medical treatment to be so woefully

inadequate as to amount to no treatment at all.

Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). Along similar lines,

“[o]rdinary medical malpractice does not satisfy the subjective component.” Grose v. Corr.

Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir. 2010). Rather, the Sixth Circuit considers the

subjective component to be satisfied where defendants recklessly disregard a substantial risk to a

plaintiff’s health. Parsons v. Caruso, 491 F. App’x 597, 603 (6th Cir. 2012). Furthermore, “a

difference of opinion between [a prisoner] and the prison health care providers and a dispute

over the adequacy of [a prisoner’s] treatment . . . does not amount to an Eighth Amendment

claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).

Plaintiff must again satisfy both the objective and subjective components to adequately

state a claim for deliberate indifference. First, the objective component mandates that a plaintiff

demonstrate a “sufficiently serious” medical need, “which is one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir.

2013) (internal citations omitted). Here, Plaintiff arguably has met this burden, as he alleges

being “sick and ill for days.” (ECF No. 1-1 at PAGEID # 10.) Because Plaintiff also alleges

having contracted Covid-19, the Court will assume, arguendo, that Plaintiff alleges being “sick

and ill [with Covid-19] for days.” As discussed above, it is well established that being diagnosed

with Covid-19 constitutes a “sufficiently serious” medical need.

Turning to the subject component, however, Plaintiff has failed to allege that Defendant

Moore acted with deliberate indifference towards Plaintiff’s serious medical needs. While

Plaintiff alleges the Defendant Moore “gave [Plaintiff] no medical attention,” Plaintiff also

alleges that “they told me to drink plenty of fluids and I’d be all right but I wasn’t.” (ECF No. 1-

1 at PAGEID ## 10, 12.) Thus, it appears that Plaintiff’s claim against Defendant Moore can be

reduced to “a difference of opinion between [a prisoner] and the prison health care providers and

a dispute over the adequacy of [a prisoner’s] treatment,” which “does not amount to an Eighth

Amendment claim.” Apanovitch, 32 F. App’x at 707.

Accordingly, it is RECOMMENDED that Plaintiff’s medical deliberate indifference

claim against Defendant Moore be DISMISSED in its entirety.

III.

On February 11, 2021, Plaintiff also filed a letter to the Court requesting “to be appointed

[] Legal Counsel representation for my case.” (ECF No. 8.) 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,

Plaintiff’s request for the appointment of counsel, ECF No. 8, is DENIED WITHOUT

PREJUDICE.

IV.

For the reasons stated above, it is RECOMMENDED that the Court DISMISS this

action in its entirety. The Court also DENIES WITHOUT PREJUDICE Plaintiff’s request for

the appointment of counsel, ECF No. 8.

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: May 3, 2021 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE