# Atkinson v. State Of Ohio

> District Court, S.D. Ohio · September 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10380838

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 14, 2022
- **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/10380838

## How later opinions describe it (automated extraction)

- 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”
- holding that defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to the magistrate judge’s report and recommendation

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

ROBERT L. ATKINSON, : Case No. 3:22-cv-192
:
Plaintiff, :
: District Judge Thomas M. Rose
vs. :
Magistrate Judge Kimberly A. Jolson
:
STATE OF OHIO, et al., :
:
Defendants. :
:

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, a former prisoner at the Montgomery County Jail, brings this pro se civil rights
action against the State of Ohio and the Montgomery County Sheriff’s Department.1 The Court
understands the action to be brought pursuant to 42 U.S.C. § 1983 and Ohio state law.2 By
separate Order, Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915.
I.
As an initial matter, Plaintiff submitted his initial Complaint in four installments,
consisting of three civil complaint forms and a habeas corpus form (see Doc. 1-1; 1-2; 1-3; and

1As set forth in Part I of this Order and Report and Recommendation, containing the procedural history of
this case, Plaintiff initially filed a habeas corpus form as part of his Complaint in this case. In accordance with
Plaintiff’s response to a show cause Order from the Court, his habeas corpus Petition was filed in a new action. (See
Doc. 10). While the Sheriff of Montgomery County, who is currently listed as a Defendant in the docket record in
this case, was arguably a proper respondent to a habeas corpus action, he has not been named as a Defendant in the
instant civil action. (See Doc. 7-1, at PageID 205). The Clerk of Court is therefore DIRECTED to update the docket
record in this case to show the two defendants named in Plaintiff’s civil action, i.e., the State of Ohio and the
Montgomery County Sheriff’s Department. (See Doc. 7-1, at PageID 205).
2See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 624 (1979) (Powell, J., concurring) (“Section
1983 provides a private cause of action for the deprivation, under color of state law, of ‘rights . . . secured by the
Constitution and laws.’”) (footnote omitted).
1-4), and also submitted a document titled Motion or Application for Over-Detention or
Wrongful Detention, which appeared to contain additional allegations (see Doc. 3, at PageID
177-80). On August 2, 2022, the Court ordered Plaintiff to submit a single, completed civil
Complaint form within thirty days if he wished to proceed with his action. (Doc. 6).

Additionally, given Plaintiff’s submission of a habeas corpus form as part of his
Complaint in this case (see Doc. 1-4), the Court noted that, to the extent that Plaintiff was “in
custody” and sought to challenge the constitutionality of his custody, conviction, or sentence,
federal habeas relief was the appropriate remedy. See Preiser v. Rodriquez, 411 U.S. 475, 500
(1973). In such a case, the Court directed Plaintiff to file a separate habeas corpus action. (Doc.
6, at PageID 192).
On August 10, 2022, Plaintiff attempted to comply with the Court’s August 2, 2022
Deficiency Order by submitting another motion for leave to proceed in forma pauperis (Doc. 7),
along with both an Amended Complaint (Doc. 7-1; 7-2; and 7-3) and a Petition for writ of habeas
corpus and supporting exhibits (Doc. 7-4; 7-5).

Because it appeared that Plaintiff submitted his habeas corpus Petition and supporting
exhibits (Doc. 7-4; 7-5) in this action in error, the Court directed Plaintiff on August 16, 2022, to
show cause within fourteen days why his separately submitted Petition for writ of habeas corpus
and supporting exhibits (Doc. 7-4; 7-5) should not be stricken from the record in this civil action
and returned to him for filing, if he so wished, in a new and separate action. Alternatively, the
Court noted that if Plaintiff intended to file his Petition for writ of habeas corpus and supporting
exhibits as a new and separate action in this Court, he should inform the Court of this intention,
also within fourteen days.
In Plaintiff’s timely response to the Court’s August 16, 2022 Order, he indicated that he
“would like to file his petition for writ of habeas corpus and exhibits as a ‘new’ and ‘separate’
action in this Court[.]” (Doc. 9, at PageID 287). In light of Plaintiff’s response, the Clerk of
Court was directed to open a new case for Plaintiff’s Petition for writ of habeas corpus and

exhibits (Doc. 7-4; 7-5) and to strike those filings (Doc. 7-4; 7-5) from this action.
This matter is now before the Court for an initial screen of Plaintiff’s Amended
Complaint (Doc. 7-1; 7-2; and 7-3) under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify
cognizable claims and to recommend dismissal of Plaintiff’s Amended 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.3
Having performed the initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS with prejudice Plaintiff’s 42 U.S.C. § 1983
claims in the Amended Complaint, the sole federal claims therein, against the State of Ohio and

the Montgomery County Sheriff’s Department, DECLINE to exercise supplemental
jurisdiction over any state-law claims against these Defendants in the Amended Complaint and
DISMISS any such claims without prejudice, and GRANT Plaintiff leave to file a Second
Amended Complaint within twenty-eight days of any Court order adopting this Report and
Recommendation.
Further, the CLERK OF COURT is DIRECTED to send this Order and Report and
Recommendation to Plaintiff using the address he has provided to the Court in this case and also

3Plaintiff’s Amended Complaint (Doc. 7-1; 7-2; and 7-3) supersedes the original complaint and is the
operative complaint. See Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir. 2014) (“An amended complaint supersedes
an earlier complaint for all purposes.”) (quotation and citation omitted).
to the address he provided in Case No. 3:22-cv-236. Plaintiff is DIRECTED to keep the Court
apprised of any changes to his address.
Additionally, for the reasons stated in footnote 1, above, the CLERK OF COURT is
DIRECTED to update the docket record in this case to show the State of Ohio and the

Montgomery County Sheriff’s Department as the Defendants in this case. (See Doc. 7-1, at PageID
205).
II.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)4 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.

4Formerly 28 U.S.C. § 1915(d).
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
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 Cty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1,
2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,
has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.
Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989)).
III.

Plaintiff brings this action against the State of Ohio and the Montgomery County
Sheriff’s Department based on allegations that he was “forced” to remain incarcerated at the
Montgomery County Jail three to four months beyond the expiration of the sentences for which
he was being held. (See Doc. 7-2, at PageID 213; Doc. 7-3, at PageID 216). For relief, Plaintiff
seeks money damages. (Doc. 7-2, at PageID 214).
The Amended Complaint is subject to dismissal for failure to state a claim upon which
relief may be granted. The Amended Complaint must be dismissed against the State of Ohio
because it is immune from suit. Absent an express waiver, the Eleventh Amendment to the
United States Constitution bars suit against a State or one of its agencies or departments in
federal court regardless of the nature of the relief sought. Seminole Tribe of Florida v. Florida,

517 U.S. 44 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89, 100 (1984); Alabama
v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663 (1974). The
exceptions to the Eleventh Amendment bar prohibiting lawsuits against a state in federal court do
not apply in this case. The State of Ohio has neither constitutionally nor statutorily waived its
Eleventh Amendment rights. See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999);
State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir. 1982); Ohio Inns,
Inc. v. Nye, 542 F.2d 673, 681 (6th Cir. 1976). Nor has Plaintiff sued a state official seeking
prospective injunctive relief against future constitutional violations. Ex Parte Young, 209 U.S.
123 (1908). In addition, Congress has not “explicitly and by clear language” expressed its intent
to “abrogate the Eleventh Amendment immunity of the States” when enacting Section 1983. See
Quern v. Jordan, 440 U.S. 332, 341-43, 345 (1979). Therefore, the State of Ohio is immune
from suit in this case.
The Amended Complaint must also be dismissed against the Montgomery County

Sheriff’s Department. Plaintiff’s claims against the Montgomery County Sheriff’s Department
are official capacity claims and are treated as claims against Montgomery County, Ohio, the
entity of which the Sheriff’s Department is an agent. Will v. Michigan Dep’t of State Police, 491
U.S. 58 (1989); Kentucky v. Graham, 473 U.S. 159 (1985); Monell v. New York City Dep’t of
Social Services, 436 U.S. 658 (1978). See also Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989). Plaintiff’s Amended Complaint fails to state a claim for relief under § 1983 against
Montgomery County because counties are not vicariously liable for the actions of their
employees under § 1983. “It is firmly established that a municipality, or . . . a county, cannot be
held liable under § 1983 for an injury inflicted solely by its employees or agents.” Gregory v.
Shelby Cty., Tenn., 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell, 436 U.S. at 694). To state a

claim for relief against Montgomery County for Plaintiff’s alleged injuries, the Amended
Complaint must allege facts showing that the alleged misconduct giving rise to Plaintiff’s
injuries was the result of a policy, statement, regulation, decision, or custom promulgated by the
County. Bright v. Gallia Cty., Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing Shamaeizadeh v.
Cunigan, 338 F.3d 535, 556 (6th Cir. 2003)); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
1994). See also Monell, 436 U.S. at 694; Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir.
1996). “The ‘official policy’ requirement [of Monell] was intended to distinguish acts of the
municipality from acts of employees of the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is actually responsible.” Pembaur v. City
of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). “[P]laintiff must adequately
plead (1) that a violation of a federal right took place, (2) that the defendants acted under color of
state law, and (3) that a municipality’s policy or custom caused that violation to happen.”
Bright, 753 F.3d at 660 (citing Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008)). See

also Polk County v. Dodson, 454 U.S. 312, 326 (1981) (municipal policy must be “moving
force” behind constitutional deprivation).
Plaintiff does not allege that his constitutional rights were violated pursuant to a county
policy. See Monell, 436 U.S. at 690. Nor does Plaintiff allege facts from which the Court could
infer a failure-to-train claim against Montgomery County. To state a failure-to-train claim
against the County, Plaintiff must allege “prior instances of unconstitutional conduct
demonstrating that the municipality had ignored a history of abuse and was clearly on notice that
the training in this particular area was deficient and likely to cause injury.” Burgess v. Fischer,
735 F.3d 462, 478 (6th Cir. 2013) (citation, quotation marks, and brackets omitted). Here,
Plaintiff does not allege any facts indicating that the County knew of prior unconstitutional

conduct on the part of Montgomery County Jail staff. Accordingly, any failure-to-train claim
must fail as to the County. See id.
Further, even if the Court were to liberally construe Plaintiff’s Amended Complaint as
asserting claims against the Montgomery County Sheriff in an individual capacity, Plaintiff does
not allege that the Sheriff had any involvement in the alleged denial of Plaintiff’s rights. “A
supervisory employee cannot be held liable under § 1983 for the constitutional torts of those he
supervises unless it is shown ‘that the supervisor encouraged the specific incident of misconduct
or in some other way directly participated in it.’” Searcy v. City of Dayton, 38 F.3d 282, 287
(6th Cir. 1994) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). See also Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“A supervisory official’s failure to supervise,
control or train the offending individual is not actionable unless the supervisor either encouraged
the specific incident of misconduct or in some way directly participated in it.”). Indeed, Plaintiff
merely alleges that he was “‘forced’ to remain incarcerated” without identifying how any named

Defendant was responsible for his allegedly untimely release.
It is therefore RECOMMENDED that the Court DISMISS with prejudice Plaintiff’s 42
U.S.C. § 1983 claims in the Amended Complaint, the sole federal claims therein, against the
State of Ohio and the Montgomery County Sheriff’s Department, for failure to state a claim upon
which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915 A(b)(1). To the extent that
Plaintiff also asserts state-law claims against these Defendants, it is further RECOMMENDED
that the Court DECLINE to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3)
over any state law claims in the Amended Complaint and DISMISS any such claims without
prejudice. However, it is additionally RECOMMENDED that Plaintiff be granted leave to file
a Second Amended Complaint to rectify the deficiencies set forth herein. In his Second

Amended Complaint, Plaintiff should name as a Defendant any person he contends is actually
and personally responsible for the alleged violation of his rights. See Pineda v. Hamilton Cty.,
Ohio, 977 F.3d 483, 490 (6th Cir. 2020) (emphasis in original) (“[A] § 1983 plaintiff generally
must prove both that a defendant was personally at fault and that the defendant’s culpable
conduct (not somebody else’s) caused the injury.”).
IV.

For the reasons explained above, it is RECOMMENDED that the Court DISMISS with
prejudice Plaintiff’s 42 U.S.C. § 1983 claims in the Amended Complaint, the sole federal claims
therein, against the State of Ohio and the Montgomery County Sheriff’s Department, DECLINE
to exercise supplemental jurisdiction over any state-law claims against these Defendants in the
Amended Complaint and DISMISS any such claims without prejudice, and GRANT Plaintiff
leave to file a Second Amended Complaint within twenty-eight days of any Court order adopting
this Report and Recommendation, naming the proper Defendants.

V.
Further, the CLERK OF COURT is DIRECTED to send this Order and Report and
Recommendation to Plaintiff using the address he has provided to the Court in this case and also
to the address he provided in Case No. 3:22-cv-236. Plaintiff is DIRECTED to keep the Court
apprised of any changes to his address.
Additionally, for the reasons stated in footnote 1, above, the CLERK OF COURT is
DIRECTED to update the docket record in this case to show the State of Ohio and the
Montgomery County Sheriff’s Department as the Defendants in this case. (See Doc. 7-1, at PageID
205).
PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party 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

the 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: September 14, 2022 s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380838. Public record. Not legal advice.