Edge v. Mahlman

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LE’SEAN EDGE, Case No. 1:20-cv-892

Plaintiff, Black, J.

Bowman, M.J.

Vv.

MS. MAHLMAN, et al.,

Defendants

REPORT AND RECOMMENDATION

Plaintiff, presently incarcerated at the Southern Ohio Correctional Facility,

proceeding pro se and in forma pauperis, has filed a civil complaint pursuant to 42 U.S.C.

§ 1983. (Doc. 4). Upon initial screening, the Court dismissed all but one Eighth

Amendment claim against Defendants Correctional Officers Justice and Wellman

(collectively, “Defendants”). Defendants have now moved to dismiss Plaintiff's sole

remaining claim. (Doc. 14). Pursuant to local practice, the motion has been referred to

the undersigned magistrate judge for initial consideration and a Report and

Recommendation. For the reasons stated, Defendants’ motion should be GRANTED.

I. Standard of Review

Defendants have filed a motion for judgment on the pleadings under Fed. R. Civ.

P. 12(c), seeking to dismiss the complaint for failure to state a claim upon which relief can

be granted. (Doc. 14 at 1). However, it appears that Defendants filed their motion in lieu

of an answer.’ Therefore, the motion could be construed as a motion to dismiss filed

under Rule 12(b)(6) rather than a motion filed under Rule 12(c).

In this instance, the distinction is irrelevant since a district court reviews a Rule

12(c) motion for judgment on the pleadings under the same standard applicable to a Rule

12(b)(6) motion to dismiss. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.

2001). Accordingly, “we construe the complaint in the light most favorable to the

nonmoving party, accept the well-pled factual allegations as true, and determine whether

the moving party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc.

v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). While such determination

rests primarily upon the allegations of the complaint, “matters of public record, orders,

items appearing in the record of the case, and exhibits attached to the complaint, also

may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.

2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)) (emphasis

omitted). The court “need not accept the plaintiffs legal conclusions or unwarranted

factual inferences as true.” Commercial Money Ctr., 508 F.3d at 336. To withstand a Rule

12(c) motion for judgment on the pleadings, “a complaint must contain direct or inferential

allegations respecting all the material elements under some viable legal theory.” /d.

The Sixth Circuit has explained the pleading requirements that are necessary to

survive a Rule 12(c) motion as follows:

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007), the Supreme Court explained that “a plaintiff's

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires

more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.... Factual allegations must be enough to

‘Defense counsel entered an appearance as an “interested party” in anticipation of the Defendants being

properly served. (Doc. 2). Defendants were served on February 23, 2021, with a responsive pleading due

on March 16, 2021. (Doc. 16). Defendants’ motion was timely filed in lieu of an answer on March 11, 2021.

raise a right to relief above the speculative level...” /d. at 1964-65 (internal

citations omitted). In Erickson v. Pardus, 550 U.S. 89, 127 S. Ct. 2197, 167

L.Ed.2d 1081 (2007), decided two weeks after Twombly, however, the

Supreme Court affirmed that “Federal Rule of Civil Procedure

8(a)(2) requires only ‘a short and plain statement of the claim showing that

the pleader is entitled to relief.’ Specific facts are not necessary; the

statement need only ‘give the defendant fair notice of what the ... claim is

and the grounds upon which it rests.’ ” /d. at 2200 (quoting Twombly, 127

S.Ct. at 1964). The opinion in Erickson reiterated that “when ruling on a

defendant's motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.” /d. (citing Twombly, 127 S.Ct. at

1965). We read the Twombly and Erickson decisions in conjunction with

one another when reviewing a district court’s decision to grant a motion to

dismiss for failure to state a claim or a motion for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12.

Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir. 2008); see also,

generally, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The fact that the undersigned permitted a single Eighth Amendment claim to

proceed beyond the screening stage does not preclude the subsequent dismissal of the

same claim upon an appropriate motion. It is true that the legal standard of review for

failure to state a claim under Rule 12(c) or Rule 12(b)(6) is technically the same as the

standard of review for failure to state a claim under 28 U.S.C. §§ 1915(e) or 1915A.

See Hill v. Lappin, 630 F.3d 468, 470-471 (6th Cir. 2010). However, the frame of

reference differs significantly. Screening under 28 U.S.C. § 1915(e) is extremely liberal.

The perspective of this Court, as a neutral arbiter examining the complaint on a superficial

level without the benefit of briefing, differs from that of an opposing party who has an

incentive to explore all possible legal arguments in a subsequent motion to dismiss or

motion for judgment on the pleadings. Necessarily constrained by limitations of time and

resources in the course of its initial sua sponte examination, this Court frequently will

permit “further development” of a weak legal claim by requiring a defendant to file an

answer or response.

In addition, 28 U.S.C. § 1915(e)(2) expressly permits dismissal “at any time if the

court determines that ... the action or appeal ... fails to state a claim on which relief may

be granted.” /d. (emphasis added). Therefore, the statute itself allows dismissal based

upon a subsequent redetermination that no claim has been stated, even if the court's

initial inclination was to let the claim proceed. In the case presented, the undersigned is

now persuaded that Defendants are entitled to dismissal based upon Plaintiff's failure to

state any claim against them.

ll. Facts Alleged in Complaint

Because all other claims were dismissed, only the following allegations against

Defendants Justice and Wellman remain at issue.

On the date of 9-2-20 around 6 p.m. | was escorted to J2 #33 once | was

placed in my cell | noticed how filthy and unsanitary the cell was. Their [sic]

was feces splatter and piss splatter on the wall also the sink and toilet had

a white dry film substance on the surface that | could only assume to be

piss, spit, cum, or God knows what. | asked C.O. Justice and C.O. Wellman

for gloves and a cleaning chemical. | was denied. That forced me to clean

off] the sink and toilet to the best of my ability which puts [me] in direct

contact with germs or viruses not knowing who slept in this [cell] prior to me.

And with Covid-19 at a[n] all time high it put me at risk. My 8° Amendment

was violated on cruel and unusual terms.

(Doc. 4 at 5). The undersigned infers from the allegations that Plaintiff cleaned the toilet

and sink soon after his request for cleaning chemicals and gloves was denied.

?Plaintiff makes similar (and worse) allegations about the conditions of a second cell that he was placed in

on October 4, 2020. “On the wall was piss and feces splatter, the sink had a white dry substance on it, the

toilet also had a dry white substance all over it and it was caked up brown substance inside the toilet,” with

“black mold” on the ceiling and a wall. (/d. at 4, 6). He alleges that he asked the “third shift C.O.” for gloves

and cleaning chemicals but was denied. (/d. at 6). The undersigned dismissed this similar claim on initial

screening in part because Plaintiff failed to allege that the defendant correctional officer had any knowledge

of its allegedly unsanitary conditions.

lll. Plaintiff's Failure to State an Eighth Amendment Claim

The Eighth Amendment requires prison officials “to provide humane conditions of

confinement” and to “ensure that inmates receive adequate food, clothing, shelter, and

medical care....” Farmer v. Brennan, 511 U.S. 825, 832 (1994). However, “extreme

deprivations are required to make out a conditions-of-confinement claim ... [blecause

routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses

against society.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)). “Not every unpleasant experience a prisoner might

endure while incarcerated constitutes cruel and unusual punishment within the meaning

of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Rather,

“[t]he Eighth Amendment is concerned only with ‘deprivations of essential food, medical

care, or sanitation,’ or ‘other conditions intolerable for prison confinement.” Richmond v.

Settles, 450 Fed. Appx. 448, 455-56 (6th Cir. 2011) (quoting Rhodes v. Chapman, 452

U.S. at 348).

To establish an Eighth Amendment claim, a plaintiff must include allegations that

satisfy both objective and subjective components of a constitutionally significant

deprivation. In the pending motion, Defendants argue Plaintiff's claims fail as a matter of

law for three reasons: (1) Plaintiff has failed to allege the objective element of his claim

because he does not allege the duration of his exposure to unsanitary conditions or any

resultant physical harm that was objectively serious; (2) Plaintiff has failed to allege facts

that suggest either Defendant exhibited the requisite subjective intent, because he has

not alleged “active unconstitutional behavior’ (Doc. 14 at 6); and (3) Defendants are

entitled to qualified immunity. Having more closely reviewed the Plaintiffs allegations in

light of the pending motion, the undersigned agrees that Plaintiff has failed to state any

viable claim under the Eighth Amendment as a matter of law.

A. Objective Component

To satisfy the objective component of his claim, Plaintiff must establish that the

harm to which he was subjected was “objectively, sufficiently serious,” such that “a prison

official's act or omission must result in the denial of ‘the minimal civilized measure of life's

necessities,” Farmer v. Brennan, 511 U.S. at 834 (quoting Rhodes, supra, 452 U.S. at

347 (additional internal quotation marks and citations omitted)). Stated another way,

Plaintiff must allege facts that present a “substantial risk of serious harm,” meaning an

“objectively intolerable risk of harm.” /d., 511 U.S. at 842, 846, and n. 9. Here, Plaintiff

alleges that his confinement in a cell during the COVID-19 pandemic, with feces and urine

splattered on one wall and an unidentified “white dry film” on the sink and toilet, was

objectively serious to the degree required by the Eighth Amendment. The undersigned

disagrees.

It is well-established that the presence of some unsanitary conditions in a cell

(including fecal matter) does not establish an Eighth Amendment claim, except in

circumstances where the volume of matter and duration of exposure are extreme.

Otherwise, every poorly sanitized or malfunctioning toilet would be cause for

constitutional concern. In a 2018 case, the undersigned summarized the case law in this

frequently litigated area. See Still v. Davis, 2018 WL 1202827 (S.D. Ohio March 8, 2018),

R&R adopted at 2018 WL 2943227 (S.D.Ohio June 12, 2018).

Conditions-of-confinement cases are highly fact-specific. “In general, the

severity and duration of deprivations are inversely proportional, so that

minor deprivations suffered for short periods would not rise to

an Eighth Amendment violation, while ‘substantial deprivations of shelter,

food, drinking water, and sanitation’ may meet the standard despite a

shorter duration.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)

(internal citation omitted). Claims alleging unsanitary conditions due to

clogged toilets and leaky plumbing are relatively common in the prison

system. In many cases, inmates deliberately cause flooding of toilets, either

as a means of protest, or because they are mentally ill. In other cases, some

form of accidental leak has caused the problem....

Colloquially speaking, the “yuck” factor influences the assessment of the

severity of the deprivation to sanitation and level of risk to health and safety.

Thus, cases involving excrement or feces, or raw sewage from toilet

overflows, tend to evoke greater concern than cases like the one presented,

involving leaky pipes that result in a lesser degree of non-potable or

contaminated water. In assessing the risk of serious harm, courts take a

common sense approach. A_ condition that might not offend

the Eighth Amendment over a shorter period of time could violate

the Eighth Amendment if the inmate was subjected to the condition over a

long period.

Thus, a case in which feces covered only the cell door, and the time period

was limited to 48 hours, was insufficient to state a claim under the Eighth

Amendment, whereas confinement in cells with multiple feces-covered

walls for longer periods could state a claim. Compare Gofarth v. Sumner

County, 2013 WL 1943020 at *3 (M.D. Tenn. May 9, 2013)(confinement in

cell with door covered with feces failed to state claim under 8th Amendment

where no injury occurred) with McBride v. Deer, 240 F.3d 1287 (10th Cir.

2001)(Eighth Amendment violation could be stated based upon

confinement to a cell covered by feces for three days); see also Johnson v.

Pelker, 891 F.2d 136 (7th Cir. 1989) (wet bedding and clothing, while

disquieting and not condoned, did not approach unconstitutional

proportions, but placing prisoner in cell for three days with no running water,

with feces smeared on the walls, while defendants ignored requests for

water to be turned on or for cleaning supplies, required further

review); McCord v. Maggio, 927 F.2d 844 (5th Cir. 1991) (Eighth

Amendment violation shown where prisoner was forced repeatedly to live

23 hours per day over two year period with no bunk, but only a bare, wet

mattress placed on a floor covered in filthy water contaminated with human

waste, in a roach-infested, windowless, dark and unlighted cell with only a

small hole cut in steel door for outside access).

Still v. Davis, 2018 WL 1202827 at **5-6 (summary judgment granted to defendants

where accidental sewage leak was of relatively short duration and growth of puddle over

time covered no more than one third of plaintiffs cell); see also Foster v. Ohio, No. 1:16-

cv-920, 2018 WL 6726965, at *14 (S.D. Ohio Dec. 21, 2018).

The recent Supreme Court case of Taylor v. Riojas, 141 S. Ct. 52 (2020) (per

curiam) did not alter the settled case law that “extreme” unsanitary conditions are required

to satisfy the objective component of an Eighth Amendment claim. In Taylor, the Fifth

Circuit had affirmed the grant of qualified immunity to the defendants after holding that

the prison officials did not have “fair warning” that housing an inmate in “particularly

egregious” conditions for six days was unconstitutional. /d. at 53-54. The Supreme Court

disagreed, cautioning courts that “no reasonable correctional officer could have

concluded that...it was constitutionally permissible to house Taylor in such deplorably

unsanitary conditions for such an extended period of time.” /d. at 53. While the focus of

Taylor was on qualified immunity,’ it is relevant to the instant case because it underscores

the type of extreme conditions that satisfy the objective component of an Eighth

Amendment claim.

Taylor described “shockingly unsanitary” conditions including confinement in a cell

that was “covered, nearly floor to ceiling, in ‘massive amounts’ of feces’: all over the floor,

the ceiling, the window, the walls, and even ‘packed inside the water faucet.” /d. at 52

(additional internal quotation and citation omitted). The plaintiff was unable to eat or drink

for nearly four days due to fear of contamination from his food and water. “Correctional

officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a

3See Moderwell v. Cuyahoga Cty., 997 F.3d 653, 660 (6th Cir. 2021), quoting Joanna C. Schwartz, Qualified

Immunity and Federalism All the Way Down, 109 Geo. L.J. 305, 351 (2020) ("The Court's decision

in Taylor sends the signal to lower courts that they can deny qualified immunity without a prior case on

point.”) and Lawrence Rosenthal, Defending Qualified Immunity, 72 S.C. L. Rev. 547, 593 & n.193 (2020)

("More recently, however, the Court has stressed that on egregious facts, qualified immunity should be

denied regardless whether there are factually similar precedents.”).

clogged drain in the floor to dispose of bodily wastes.” /d. Several defendants made

comments about the conditions before placing the plaintiff in the two cells, suggesting

both knowledge and malevolent intent. In the second cell, the plaintiff held his bladder

for nearly 24 hours before involuntarily relieving himself “causing the drain to overflow

and raw sewage to spill across the floor.” /d. Deprived of both clothing and a bunk in the

second cell, the plaintiff was forced to sleep naked in the raw sewage. /d.

At the opposite end of the spectrum and in stark contrast to the extreme conditions

described in Taylor are cases involving transient or temporary discomforts, which by and

large have been deemed to be insufficiently “extreme” to warrant constitutional concern.

See, e.g., Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001) (discussing

temporary inconveniences); Perkins v. Bailey, 2021 WL 868887, at *9 (W.D.Mich., March

9, 2021) (holding that allegations of dirty cell conditions over a two-week period fell “well

short of meeting the objective component of the Eighth Amendment standard.”)Rogers v.

Roy, 2021 WL 1686133, at *7 (W.D.Mich., April 29, 2021) (collecting cases, and holding

that “[a]llegations about temporary inconveniences, e.g., being deprived of a lower bunk,

subjected to a flooded cell, or deprived of a working toilet, do not demonstrate that the

conditions fell beneath the minimal civilized measure of life's necessities as measured by

a contemporary standard of decency.”). The undersigned finds the type, quantity, and

degree of unsanitary conditions that Plaintiff alleges in this case to fall closer on the

continuum to a “temporary inconvenience” or garden variety dirty toilet than to the clearly

inhumane conditions described in Taylor. Here, Plaintiff alleges that he only noticed the

conditions after being placed in the cell, suggesting that the level of grime was not so

obvious as the filth on display in Taylor. Adding to that conclusion is Plaintiffs description

of the conditions. Plaintiff describes observing “feces splatter and piss splatter’ on one

wall,4 and a “white dry film” of unknown origin on the surface of the sink and toilet.5 He

alleges that a single request for cleaning chemicals and gloves was denied, leading him

to take it upon himself to clean the “dry white film” off the sink and toilet, presumably with

soap and water from the sink. A reasonable inference is that Plaintiff cleaned the toilet

and sink within hours of his arrival into the cell. Allegations of such a fleeting exposure

to an unsanitary sink and toilet while cleaning them without gloves or access to stronger

disinfecting chemicals does not rise to the level of an Eighth Amendment claim.

The only remaining question is whether Plaintiff's allegation that the presence of

such conditions in the midst of the COVID-19 pandemic elevated his risk to the level

prohibited by the Eighth Amendment. See Wilson v. Seiter, 501 U.S. 294, 304 (stating

that, “some conditions of confinement may establish an Eighth Amendment violation

“in combination” when each would not do so alone, but only when they have a mutually

enforcing effect that produces the deprivation of a single, identifiable human need such

as food, warmth, or exercise - for example, a low cell temperature at night combined with

a failure to issue blankets”) (emphasis in original). Comparing the facts alleged in the

complaint with a recent Sixth Circuit case that included an Eighth Amendment claim

based upon COVID-19 risk, the undersigned concludes that it did not.

In Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), a subclass of inmates who

alleged particular vulnerability to the effects of COVID-19 sought habeas corpus relief at

“The word “splatter” suggests a pattern of small droplets, as opposed to the “massive amounts” described

in Taylor. See https://www.merriam-webster.com/dictionary/splatter (accessed on July 21, 2021).

5Plaintiff alleges that the substance might have been “piss, spit, cum, or God knows what.” Considering

the description of the substance as a “white dry film,” it might easily have been a more benign dried white

liquid such as spilled milk.

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a point in time when vaccines were not yet available. The medically-vulnerable inmates

complained of overcrowded housing and frequently running out of soap. /d., 961 F.3d at

835 (describing complaint of “overcrowding; population density in close confinement;

insufficient ventilation; shared toilet, shower, and eating environments; and limits on

hygiene and personal protective equipment.’). In its review and reversal of a preliminary

injunction granted by the trial court, the Sixth Circuit first acknowledged that the at-risk

inmates had demonstrated the objective prong of their Eighth Amendment claim because

COVID-19 is “highly infectious,” poses increased risk to those over 65 or with underlying

health conditions, and “if contracted...can cause severe complications or death.” Wilson,

961 F.3d at 833.

In this case, by contrast, Plaintiff does not allege any health condition that makes

him particularly vulnerable to the risks of COVID-19, nor does he allege that he is

unvaccinated or that there was any shortage of running water or soap. His complaint

does not concern overcrowded conditions that increased risk to an airborne disease;

rather, he alleges only a one-time denial of gloves and a cleaning “chemical.” At least at

the time that Plaintiff alleges that the conditions occurred, the risk of contracting COVID-

19 from contact with surfaces was either unknown or presumed to be low. The Eighth

Amendment standard requires a showing of a “substantial risk of serious harm.” While

the Court does not condone the unsanitary conditions as alleged, the transient presence

of fecal “splatter” on a wall or a “film” of unknown origin on a toilet or sink — even during

a global pandemic — is not the type of extreme deprivation that runs afoul of the Eighth

Amendment.

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Finally, while “massive amounts” of feces pose a more obvious risk, the more

garden-variety sanitation issues that Plaintiff alleges in combination with the absence of

any allegation of physical injury also supports the conclusion that Plaintiff was not

exposed to a substantial risk of serious harm.® See, e.g., Smith v. Copeland, 87 F.3d

265, 269 (8th Cir. 1996) (no Eighth Amendment violation where an inmate complained

that he was exposed to raw sewage from an overflowed toilet in his cell for four days, but

did not allege he suffered any harm); Gofarth v. Sumner County, 2013 WL 1943020 at *3

(M.D. Tenn. May 9, 2013) (confinement in cell with door covered with feces failed to state

claim under 8th Amendment where plaintiff did not allege he became ill or suffered actual

injury).

B. Subjective Component

Defendants also are entitled to judgment on the pleadings based upon Plaintiff's

failure to include allegations that show the subjective element of his Eighth Amendment

claim. Deliberate indifference requires a “state of mind more blameworthy than

negligence.” Farmer, 511 U.S. at 835. Plaintiff must show that each Defendant

subjectively perceived facts from which he or she inferred a substantial risk existed to

Plaintiff of serious harm, actually drew that inference, and then disregarded the risk. See

Richmond, 450 Fed. Appx. at 455 (citing Farmer, 511 U.S. at 834, and holding that a

plaintiff must show the defendants acted “wantonly,” with “deliberate indifference to the

plaintiffs serious needs.”). The Supreme Court has long rejected “a reading of the Eighth

®The Prison Litigation Reform Act states that “no Federal civil action may be brought by a prisoner confined

in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without

a prior showing of physical injury.” 42 U.S.C. § 1997e(e). However, a plaintiffs failure to allege a physical

injury will not preclude all constitutional claims. See King v. Zamiara, 788 F.3d 207 (6th Cir. 2015) (holding

that § 1997e(e) does not preclude constitutional claims, distinct from any mental or emotional injury, that

do not result in physical injury).

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Amendment that would allow liability to be imposed on [defendants] solely because of the

presence of objectively inhumane prison conditions.” Farmer, 511 U.S. at 838

(quoting Wilson v. Seiter, 501 U.S. 294, 299-300 (1991)); see also Krutko v. Franklin

County, Ohio, 559 Fed. Appx. 509, 511 (6th Cir. 2014) (remanding to district court to

conduct an individualized inquiry to determine whether any of the defendants were

entitled to qualified immunity based upon the evidence presented as to the defendants'

subjective state of mind).

Close review of Plaintiff's allegations demonstrates that Plaintiff has failed to allege

any facts sufficient to support the subjective element of his claim. Because Plaintiff

himself did not perceive the sanitation issues until after being placed in the cell, it does

not appear that the “splatter” on one wall or “film” on the sink and toilet were obvious to

any passerby or to someone entering the cell only briefly.’ After “noticing” the issues,

Plaintiff alleges that he asked the two Defendants for “gloves and a cleaning chemical”

and was “denied.” Critically, he does not allege that he informed either Defendant of the

nature or degree of the allegedly unsanitary conditions, or why he sought the supplies.

Nor does Plaintiff include allegations that would suggest any independent knowledge of

the alleged conditions by Defendants. Contrast Taylor, 141 S. Ct. at 54 (discussing

comments made by officer, upon placing plaintiff in the feces-covered cell, that Taylor

was “going to have a long weekend” and comment by another defendant, upon placing

him in the second cell, that he “hoped Taylor would ‘f***ing freeze’”) (citation to lower

record omitted). Since Plaintiff has failed to allege any facts that suggest that either

Defendant was aware of the allegedly unsanitary conditions and exhibited the requisite

7It is not clear from Plaintiffs complaint whether either Defendant was responsible for placing him in the

cell, or whether they entered the cell at any time.

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indifference to Plaintiffs health or safety, Defendants are entitled to judgment on the

pleadings.

C. Qualified Immunity

A governmental official performing discretionary functions is entitled to qualified

immunity in his or her individual capacity if the facts alleged do not make out a violation

of a constitutional right, or if the alleged constitutional right was not clearly established at

the time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223

(2009); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In most cases, the Sixth

Circuit instructs trial courts to resolve qualified immunity at the summary judgment stage

rather than on a motion for judgment on the pleadings.

Although a defendant's “entitlement to qualified immunity is a threshold

question to be resolved at the earliest possible point, that point is usually

summary judgment and not dismissal under Rule 12.” Wesley v. Campbell,

779 F.3d 421, 433-34 (6th Cir. 2015) (cleaned up). “The reasoning for our

general preference is straightforward: ‘Absent any factual development

beyond the allegations in a complaint, a court cannot fairly tell whether a

case is “obvious” or “squarely governed” by precedent, which prevents us

from determining whether the facts of this case parallel a prior decision or

not’ for purposes of determining whether a_ right is clearly

established.” Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019)

(quoting Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch.

Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring)). Therefore,

“it is generally inappropriate for a ... court to grant a [12(c) motion for

judgment on the pleadings] on the basis of qualified immunity.” Wesley, 779

F.3d at 433.

Moderwell, 997 F.3d at 660-61.

However, this “general preference” is not without exceptions. Thus, the Sixth

Circuit also recognizes that ‘insubstantial claims against government officials should be

resolved as early in the litigation as possible, preferably prior to broad discovery.”

Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (citing Pearson v. Callahan, 555

14

U.S. at 231); accord Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In the case presented,

Plaintiff's allegations are so insubstantial that the Court can make the qualified immunity

determination without awaiting further development of the record. Alternatively, in the

unlikely event that a reviewing court would find that Plaintiff has stated an Eighth

Amendment claim, the undersigned concludes that no reasonable correctional officer

would have foreseen that denying Plaintiffs request for gloves and a “cleaning chemical”

on the facts alleged would violate the Eighth Amendment.

IV. Conclusion and Recommendation

For the foregoing reasons, IT IS RECOMMENDED THAT Defendants’ motion for

judgment on the pleadings (Doc. 14) be GRANTED and that this case be dismissed.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LE’SEAN EDGE, Case No. 1:20-cv-892

Plaintiff, Black, J.

Bowman, M.J.

V.

MS. MAHLMAN, et al.,

Defendants.

NOTICE

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

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

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of

the R&R objected to, and shall be accompanied by a memorandum of law in support of

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)

DAYS after being served with a copy of those objections. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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