Perry v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANTHONY R. PERRY,

Plaintiff,

Civil Action 1:22-cv-178

v. Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

RONALD ERDOS, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an Ohio inmate proceeding without the assistance of counsel, brings this action

against several employees of Southern Ohio Correctional Facility (“SOCF”) under 42 U.S.C.

§ 1983 alleging that prison officers used excessive force in violation of the Eighth Amendment

and that he was denied due process in the ensuing disciplinary proceedings in violation of the

Fourteenth Amendment. Following an initial screen of Plaintiff’s Amended Complaint under 28

U.S.C. §§ 1915(e)(2) and 1915A, the Court determined that Plaintiff could proceed on his

individual-capacity Eighth Amendment excessive force claim against Defendants Dofflemyer,

Pierce, Scott, and Fry arising out of the alleged June 25, 2020 beating; the Court dismissed

Plaintiff’s remaining claims. (ECF Nos. 30, 41.) This matter is before the Court for

consideration of the Motion to Dismiss filed by Defendants Pierce and Dofflemyer and the State

of Ohio as an interested party (“Defendants’ Motion to Dismiss”). (ECF No. 77.) For the

reasons that follow, it is RECOMMENDED that Defendants’ Motion to Dismiss be DENIED.

I. BACKGROUND

As set forth above, only Plaintiff’s individual-capacity excessive force claims against

Defendants Dofflemyer, Pierce, Scott, and Fry arising out of the alleged June 25, 2020 beating

remain pending. The undersigned summarized Plaintiff’s allegations relating to this claim as

follows:

Plaintiff’s Amended Complaint alleges that Plaintiff was the victim of excessive

force on June 25, 2020, when he was “beaten, stomped, punched, kicked in the face

with PR sticks and was called a nigger” by Defendants Dofflemyer, Pierce, Scott,

and Fry. (Am. Compl. 4, ECF No. 10.) Plaintiff also alleges that this use of force

caused him “suffering and severe pain in my left hand, arm, and wrist.” (Id.)

(June 22, 2022 Order & R. & R. 4, ECF No. 30.)

In the subject Motion to Dismiss (ECF No. 77), Defendants argue that Plaintiff’s

excessive force claim must be dismissed as implausible because his allegations are contradicted

by the exhibits he attached to his original Complaint. Defendants alternatively argue that

dismissal is required because Plaintiff’s excessive force claim is barred by Heck v. Humphrey,

512 U.S. 477 (1994) and its progeny.

II. STANDARD FOR MOTION TO DISMISS

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 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) (cleaned up). A complaint will not

“suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (cleaned up).

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. (cleaned up). 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, 374 F. App’x 612, 614 (6th Cir. 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. DISCUSSION

The undersigned first considers Defendants’ contention that the exhibits Plaintiff attached

to his original Complaint renders his allegations implausible before turning to Defendants’

alternative arguments that his claims are barred by Heck v. Humphrey.

A. Plaintiff’s Attachments

Defendants acknowledge that Plaintiff’s Amended Complaint sufficiently states an

excessive force claim. (See Defs.’ Mot. to Dismiss 7, ECF No. 77.) Defendants maintain,

however, that Plaintiff’s allegations are rendered implausible because those allegations are

contradicted by the exhibits Plaintiff attached to his original Complaint. Specifically, Defendant

relies upon a “Disposition of Grievance” dated August 17, 2020. (ECF No. 6 at PAGEID ##

149–50.) In this August 17 Disposition of Grievance, a prison official offers a number of

reasons for denying Plaintiff’s grievance relating to the June 25, 2020 incident. As relevant here,

the prison official states that Defendants Scott and Fry could not have taken the actions Plaintiff

alleges because they were not present on June 25 and also that Plaintiff’s medical records state

that he denied pain and injury and that an examination confirmed no signs of injury or distress.

Citing this explanation offered by a prison official for denying Plaintiff’s grievance, Defendants

argue that “Plaintiff[’s] pleadings are implausible because two of the four Defendants he claims

took part in the beating were not working that day and he suffered no injury.” (Defs.’ Mot. to

Dismiss 7, ECF No. 77.)

Defendants’ argument improperly requires this to Court accept as true the prison

official’s statements in the August 17 Disposition of Grievance that Plaintiff attached to his

original Complaint. Pursuant to Federal Rule of Civil Procedure 10(c), “a statement in a

pleading may be adopted by reference elsewhere in the same pleading or motion.” Fed. R. Civ.

P. 10(c) (emphasis added). Further, a “copy of a written instrument that is an exhibit to a

pleading is a part of the pleading for all purposes.” Id. Nevertheless, “it is generally not

permissible to accept as true the defendants’ responses to a pro se prisoner’s grievances that are

attached to his complaint, where the prisoner disputes the validity of the defendants’ statements.”

Turner v. Welkal, No. 3:12-cv-0915, 2014 WL 347815, at *18 (M.D. Tenn. Jan. 31, 2014); Jones

v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008) (“Rule 10(c) does not require a plaintiff

to adopt every word within the exhibits as true for purposes of pleading simply because the

documents were attached to the complaint to support an alleged fact.”).

Nothing in Plaintiff’s Complaint or Amended Complaint reflects that he intended to

accept as true or adopt the prison official’s responses to his grievances. Cf. Jones, 521 F.3d at

561 (holding that attachment of a transcript of defendant’s unilateral statements to complaint did

not mean that the plaintiff adopted those statements but instead shows that the defendant made

such statements); Franklin v. Dudley, No. CIV S-07-2259, 2009 WL 3073930, at *3 (E.D. Cal.

Sept. 22, 2009) (statements defendant made in grievance were not adopted into complaint where

plaintiff attached grievance to complaint to prove exhaustion of administrative remedies, and

nothing in the complaint suggested that the plaintiff was adopting as true the defendant’s

statements). It is therefore RECOMMENDED that the Court decline to rely upon the prison

officials’ statements in the grievances Plaintiff attached to his original Complaint to disturb its

earlier holding that Plaintiff has sufficiently alleged an individual-capacity Eighth Amendment

excessive force claim.

B. Heck v. Humphrey

Defendants alternatively argue for dismissal of this action as barred by Heck v.

Humphrey. Defendants reason as follows:

Plaintiff’s disciplinary conviction for Rules 4 (Causing, or attempting to cause,

physical harm to another.) and 21 (Disobedience of a direct order) bars Plaintiff from

succeeding on his claims as such a ruling would necessarily imply the invalidity of the

convictions. [Doc. 6, PageID# 149; Ohio Admin. Code 5120-09-06]. If Plaintiff

prevails in the current action, he will have established that his RIB conviction for a

Rules 4 and 21 violation lacks any basis. As such a finding would necessarily imply

the invalidity of the disciplinary conviction, it must be dismissed pursuant to Heck v.

Humphrey, 512 U.S. 477 (1994) and its progeny.

(Defs.’ Mot. to Dismiss 11, ECF No. 77.)

In Heck v. Humphrey, the United States Supreme Court held that, in assessing a claim

under 42 U.S.C. § 1983, a court “must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence.” 512 U.S. 477, 487 (1994).

If the claim would render a conviction or sentence invalid, “the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”

Id. Courts now refer to this requirement as the “favorable termination rule.” In Edwards v.

Balisok, the Supreme Court extended this “favorable termination rule” to a prison disciplinary

hearing resulting in the deprivation of good-time credits, where the prisoner’s civil rights action

alleging the denial of his due process rights would “necessarily imply” the invalidity of the

deprivation of good-time credits. See 520 U.S. 641, 646 (1997).

The Sixth Circuit has explained that Heck operates to bar a § 1983 claim in two

circumstances:

In this Circuit, there are two circumstances under which Heck may apply to bar a

§ 1983 claim. “The first is when the criminal provision makes the lack of excessive

force [or the lack of an illegal entry] an element of the crime.” Schreiber v. Moe,

596 F.3d 323, 334 (6th Cir. 2010) (citing Heck, 512 U.S. at 486 n. 6, 114 S.Ct.

2364). “The second is when excessive force [or illegal entry] is an affirmative

defense to the crime . . . . ” Id. (citing Cummings v. City of Akron, 418 F.3d 676,

684 (6th Cir. 2005), for the proposition that “an assault conviction barred an

excessive-force claim because the plaintiff did not raise excessive force as a

defense.”). See also Gottage v. Rood, 533 F. App’x 546, 550 (6th Cir. 2013);

Walker v. City of Lebanon, No. 3:12–CV–855–H, 2013 WL 6185402, at *4 (W.D.

Ky. Nov. 25, 2013). In each of these circumstances, the § 1983 suit would “seek[ ]

a determination of a fact that, if true, would have precluded the conviction.”

Schreiber, 596 F.3d at 334. Therefore, in this Circuit, if a plaintiff asserts a claim

that contradicts an element of an underlying criminal offense, or if that claim could

have been asserted in criminal court as an affirmative defense, Heck applies to bar

the § 1983 suit.

Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608–09 (6th Cir. 2014).

Generally, excessive force claims “do not run afoul of Heck because the question of the

degree of force used by a police or corrections officer is analytically distinct from the question

whether the plaintiff violated the law.” Huey v. Stine, 230 F.3d 226, 230 (6th Cir. 2000),

overruled in part on other grounds by Muhammad v. Close, 540 U.S. 749, 754–55 (2004);

Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006), abrogated on other grounds by Wallace

v. Kato, 549 U.S. 384 (2007) (noting that “a claim of excessive force does not necessarily relate

to the validity of the underlying conviction and therefore may be immediately cognizable”

(citation omitted)). In other terms, “[w]here there is room for the facts alleged by the plaintiff

and the facts essential to the judgment . . . to peacefully co-exist, the § 1983 [claim] must be

allowed to go forward.” Lockett v. Suardini, 526 F.3d 866, 873 (6th Cir. 2008) (internal citations

and quotations omitted). Courts must therefore “look both to the claims raised under § 1983 and

to the specific offenses for which the § 1983 claimant was convicted.” Schrieber v. Moe, 596

F.3d 323, 334 (6th Cir. 2010) (internal quotation marks and citation omitted).

In addition, claims for excessive force are not subject to Heck’s bar when the alleged

excessive force was applied after the activity giving rise to the conviction. Sigley v. Kuhn, Nos.

98-3977, 99-3531, 2000 WL 145187, at *4 (6th Cir. Jan. 31, 2000) (holding that excessive force

occurring after the plaintiff’s resistance and arrest would not necessarily imply the invalidity of

the underlying conviction for resisting arrest); Lassen v. Lorain Cty., Ohio, No. 1:13-cv-1938,

2014 WL 3511010, at *4 (N.D. Ohio July 14, 2014) (“Heck’s bar does not apply when the

alleged excessive force was applied after an arrest.” (citing Michaels v. City of Vermillion, 539

F. Supp. 2d 975, 992 (N.D. Ohio 2008)). Thus, “a court must carefully examine the facts and the

temporal sequence of the underlying offense and the alleged unconstitutional conduct . . . .”

Hayward, 759 F.3d at 612.

Here, notwithstanding Defendants’ conclusory assertions to the contrary, the undersigned

cannot, based upon the allegations in Plaintiff’s Amended Complaint, conclude that Plaintiff’s

success on his § 1983 excessive force claim would necessarily imply the invalidity of his

disciplinary convictions. Moreover, nothing in the pleadings reflects that Plaintiff’s prison

disciplinary convictions deprived him of good-time credits or otherwise extended his prison

sentence. For these reasons, it is RECOMMENDED that the Court reject Defendants’

argument that this action is Heck-barred.

IV. DISPOSITION

For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion to Dismiss

be DENIED.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §

636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

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

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE