The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DERRICK BLASSINGAME :
:
Plaintiff, : Case No. 1:21-cv-00395-ALM-KLL
:
v. : CHIEF JUDGE ALGENON L. MARBLEY
:
TRIHEALTH, INC., et al., : MAGISTRATE JUDGE LITKOVITZ
:
Defendants.
OPINION & ORDER
On June 1, 2022, this case was transferred to the docket of the undersigned from the
Honorable Judge Timothy S. Black of the Western Division. (ECF No. 20). This matter comes
before the Court on Plaintiff Derrick Blassingame’s Objections (ECF No. 56) to the Magistrate
Judge’s Report and Recommendation (ECF No. 55) recommending that the Motion to Dismiss
filed by Defendant City of Cincinnati, Ohio (ECF No. 7) be granted. For the reasons set forth
below, Blassingame’s Objections are OVERRULED, and the Report is ADOPTED. As such,
Blassingame’s Complaint (ECF No. 3) is DISMISSED WITH PREJUDICE to the extent that it
alleges claims against Defendant City of Cincinnati.
I. BACKGROUND
A. Factual Background
The facts of this case as presented by Mr. Blassingame in his Complaint read as follows.
On November 4, 2020, Blassingame went to be seen at The Good Samaritan Hospital of
Cincinnati, Ohio, complaining of chest pain. (ECF No. 3, ¶11–12). The Good Samaritan Hospital
operates in affiliation with TriHealth, Inc., a not-for-profit health system. (Id. at ¶8).
Blassingame was instructed by the TriHealth Good Samaritan doctors to return if his symptoms
worsened. (Id. at ¶11). They did worsen, and Blassingame arrived at the hospital’s Emergency
Department on the following day for severe chest pain. (Id. at ¶12). Blassingame was instructed
by a nurse to stand in a designated area as he waited to be checked in. (Id.). While waiting,
Blassingame was approached by TriHealth Public Safety security officers with tasers drawn.
(Id.). Blassingame was directed to lay face down on the ground with his hands up and did so
under fear of being tased otherwise. (Id.). Blassingame’s symptoms worsened as a result of being
threatened, forced to lie on the concrete floor, and having the knees of multiple security officers
placed on his back as they handcuffed him. (Id.). Cincinnati Police Officers placed him into
custody for Criminal Trespassing and Disorderly Conduct, denying him further medical
treatment by suggesting that it was urgent that they arrest him and present him on the docket for
“night court.” (Id. at ¶15).
B. Procedural
On June 10, 2021, Blassingame, proceeding pro se, filed a complaint against Defendants
TriHealth, Inc.; The Good Samaritan Hospital of Cincinnati, Ohio; the City of Cincinnati, Ohio;
Jacob Boatright (a TriHealth Public Safety security officer); Joyce Carter (Public Relations
Manager for TriHealth, Inc.); and Steve Gracey (Senior Vice President and General Counsel of
TriHealth, Inc.). (ECF No. 3). Blassingame sued all Defendants on two counts: (1) violating his
rights under the Emergency Medical Treatment and Active Labor Act (EMTALA), codified at 42
U.S.C. § 1395dd, and (2) violating his rights under the Rehabilitation Act of 1973, codified at 29
U.S.C. § 794. (Id.)
On November 3, 2021, Defendant City of Cincinnati filed its Motion to Dismiss and/or to
Stay. (ECF No. 7). Because she had not received a response in opposition from Blassingame by
that point, the Magistrate Judge issued a Report and Recommendation (ECF No. 21) on March
18, 2022, recommending that Defendant City’s Motion to Dismiss be granted for lack of
prosecution. On April 28, 2022, the Court granted Blassingame’s motion for withdrawal (ECF
No. 24) of the R&R, allowing briefing to thereby continue on Defendant City’s Motion to
Dismiss. (ECF No. 25). From there, Blassingame filed his response in opposition to Defendant
City’s Motion to Dismiss (ECF No. 26), to which Defendant City replied (ECF No. 28), and then
to which Blassingame filed a surreply memorandum (ECF No. 29).
The Magistrate Judge issued the instant Report and Recommendation on Defendant
City’s Motion to Dismiss on August 15, 2022. (ECF No. 55). The Magistrate Judge noted that
Blassingame failed to seek leave to file his surreply as required by S.D. Ohio Civ. R. 7.2(a)(2);
however, the Magistrate Judge elected to consider its contents given Blassingame’s pro se status.
Blassingame filed his objection to the R&R (ECF No. 56), to which Defendant City filed its
response in opposition (ECF No. 59).
II. STANDARD OF REVIEW
In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the
basis that the Plaintiff failed to state a claim upon which relief may be granted, “[a]ll factual
allegations in the complaint must be presumed true, and reasonable inferences must be made in
favor of the non-moving party.” Mitchell v. BMI Fed. Credit Union, 374 F. Supp. 3d 664 (S.D.
Ohio 2019). The complaint must “contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). And “[a] claim has facial plausibility
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.
III. LAW AND ANALYSIS
A. Blassingame’s Emergency Medical Treatment and Active Labor Act (EMTALA)
Claim
The Magistrate Judge recommended the dismissal of Blassingame’s EMTALA claim.
(ECF No. 55 at 4). In her analysis, the Magistrate Judge first noted that the statute “applies
exclusively to hospitals with an emergency department, and requires that such hospitals provide
individuals with ‘an appropriate medical screening examination. . . .’” (ECF No. 55 at 3 (quoting
42 U.S.C. § 1395dd(a))). After noting the Blassingame’s concession to the City’s position that it
cannot be sued for an alleged EMTALA violation, the Magistrate Judge recommended dismissal
as to that claim. (Id. at 3–4).
Although Blassingame submitted objections to the Magistrate Judge’s R&R, his only
argument with respect to the recommended dismissal of the EMTALA claim is that “[t]he
Plaintiff restates his conclusions that the defendant City of Cincinnati cannot be sued for an
alleged EMTALA violation as the law currently stands.” (ECF No. 56 at 2). The EMTALA’s
civil enforcement provision applies to “[a]ny individual who suffers personal harm as a direct
result of a participating hospital's violation of a requirement of this section,” allowing them to,
“in a civil action against the participating hospital, obtain those damages available for personal
injury under the law of the State in which the hospital is located, and such equitable relief as is
appropriate.” 42 U.S.C. § 1395dd(d)(2)(A); Moses v. Providence Hosp. & Med. Centers, Inc.,
561 F.3d 573, 579 (6th Cir. 2009). The statute’s language contemplates only that “EMTALA's
provision authorizing private suits expressly allows claims against the participating hospital.” Id.
at 587. Given the clear language of the statute and Blassingame’s concession that the City cannot
be held liable under the statute, the Court adopts in full the R&R recommending dismissal of this
claim.
B. Blassingame’s Rehabilitation Act Claim
The Magistrate Judge then turned to Blassingame’s Rehabilitation Act claim. (ECF No.
55 at 4). As the Magistrate Judge correctly noted (Id.), Section 504 of the Rehabilitation Act of
1973 provides:
“No otherwise qualified handicapped individual ... shall, solely by reason of his
handicap, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance ....”
29 U.S.C. § 794. To sustain his claim under the Rehabilitation Act, then, Blassingame
must establish the following elements:
(1) The plaintiff is a “handicapped person” under the Act; (2) The plaintiff is
“otherwise qualified” for participation in the program; (3) The plaintiff is
being excluded from participation in, or being denied the benefits of, or being
subjected to discrimination under the program solely by reason of his
handicap; and (4) The relevant program or activity is receiving Federal
financial assistance.
G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 635 (6th Cir. 2013). The Magistrate Judge
recommended the dismissal of this claim because Blassingame did not allege “[he] was
excluded from participation in, denied the benefits of, or subjected to discrimination
under the program solely by reason of his disability.” (ECF No. 55 at 4). Blassingame
alleged that the “program” denied to him was medical treatment for his chest pain. (Id. at
5). He also identified his disability as “cardiac chest pain complications.” (Id.). But this
Court finds, as the Magistrate Judge did, that Blassingame did not allege that the officers
arrested him solely because he was experiencing cardiac chest pain. (Id.) The Magistrate
Judge additionally noted that no case had been identified in which the Court applied the
Rehabilitation Act to allegations that an arrest precluded an arrestee from obtaining a
benefit from another entity—neither has the Court. (Id. at 6). Finally, the Magistrate
Judge correctly noted that Blassingame failed to allege facts showing that the misconduct
giving rise to his injuries resulted from a policy, statement, regulation, decision, or
custom promulgated by the City (Id. at 7), a factual predicate necessary to state a claim
for relief against the City for his alleged injuries. See Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690 (1978).
Blassingame produces four objections to this section of the Magistrate Judge’s
analysis. He first argues that there are some cases in which the Rehabilitation Act has
been applied in the context of arrests, and that it is proper to do so here because the
Cincinnati police interfered with his ability to access “the benefits of receiving
emergency medical services.” (ECF No. 56 at 4–5). He also argues that the arresting
officers were aware of his disability, which was his “morbid obesity.” (Id.). None of
Blassingame’s objections, however, rebut the Magistrate Judge’s conclusion that no
identified case has applied the Act to allegations that an arrest interfered with an arrestee
obtaining a benefit from another entity (ECF No. 55 at 6). What is more, even assuming
that the arresting officers were aware of Blassingame’s disability, Blassingame does not
allege that the officers placed him under arrest “solely by reason” of the same. 29 U.S.C.
§ 794. As such, the Court dismisses this objection. Second, Blassingame argues that the
Court must consider the additional allegations submitted in his Motion in Opposition to
the City’s Motion to Dismiss (ECF No. 26).1 (ECF No. 56 at 5). Notwithstanding
precedent holding that, “[w]hen reviewing a motion to dismiss, the district court may not
consider matters beyond the complaint,” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603,
613 (6th Cir. 2009), the Magistrate Judge correctly found that the additional allegations,
even when considered, do not “save his claim against the City.” (ECF No. 55 at 6).
Indeed, the new allegations, even if true, would fail to render the City liable for the
Cincinnati officers’ alleged misconduct under Monell. See Monell, 436 U.S. at 690.
Hence, the Court dismisses this objection. Blassingame’s third objection disputes the
Magistrate Judge’s reasoning that the Court may not consider, on review of Defendant
City’s Motion to Dismiss (ECF No. 7), the new allegations contained in his Motion in
Opposition to the City’s Motion to Dismiss (ECF No. 26). Given that the basis for
Blassingame’s third objection is nearly duplicative of the second, his third objection is
thus dismissed on the same basis. Blassingame’s fourth and final objection argues that
qualified immunity should not apply in this proceeding. (ECF No. 56 at 6). Qualified
immunity, however, was never mentioned in the Magistrate Judge’s Order. Further, it is
“an affirmative defense which must be affirmatively pleaded,” Eng. v. Dyke, 23 F.3d
1086, 1089 (6th Cir. 1994), but Defendant City never did so. Accordingly, the Court
dismisses this objection.
Whether the Court should grant a dismissal with or without prejudice is within its
sound discretion under Federal Rule of Civil Procedure 41(a)(2). See Link v. Wabash R.
Co., 370 U.S. 626, 634 (1962). The Court finds, as the Magistrate did (ECF No. 55 at 7–
1 As summarized by the Magistrate Judge, these additional allegations are “that the arresting officers ignored his
request to adjust his handcuffs and to be seen by jail medical staff…and [that] Mr. Blassingame has a clearly
identifiable disability which the city neglected to care for while Mr. Blassingame was in its custody on November 5,
2020.” (ECF No. 55 at 6).
8), that Blassingame’s complaint would fail to state a claim even if he were permitted to
amend it to allege the facts he included in his additional briefing. Thus, the Court
dismisses Blassingame’s claims against Defendant City with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Magistrate Judge’s Report and Recommendation
(ECF No. 55) is ADOPTED, and Defendant City’s Motion to Dismiss (ECF No. 7) is
GRANTED. Blassingame’s Complaint (ECF No. 3) is thus DISMISSED WITH
PREJUDICE to the extent it alleges claims against Defendant City. Defendant City is
hereby DISMISSED from the lawsuit.
IT IS SO ORDERED.
ALGENONA. MARBL
CHIEF UNITED STATES DISTRICT JUDGE
DATED: September 26, 2022