The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
DOMANSHAY WILLIS, : Case No. 1:22-cv-264
Plaintiff, Judge Matthew W. McFarland
v :
ODRC, DIRECTOR, et al.,
Defendant.
ENTRY AND ORDER ADOPTING REPORT AND RECOMMENDATIONS AND
ORDER (Doc. 10)
The Court has reviewed the Report and Recommendations and Order (“Report”)
of United States Magistrate Judge Karen L. Litkovitz (Doc. 10), to whom this case is
referred pursuant to 28 U.S.C. § 636(b). In the Report, Magistrate Judge Litkovitz
ordered that Plaintiff's claims for excessive force and/or failure to intervene against
Defendants Officer C. Garvey, Officer Hammonds, Sergeant Brown, Lt. Patrick, Lt.
Folkerson, and Lt. Kugle shall proceed at this stage in the litigation. Magistrate Judge
Litkovitz also ordered that Plaintiff's claim for deliberate indifference to a serious
medical need against Defendant Thompson, in her official capacity and as narrowed by
the Report, shall proceed. Lastly, Magistrate Judge Litkovitz recommended that the
Court dismiss Plaintiffs remaining claims, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b), for failure to state a claim.
Plaintiff filed Objections to the Report (Doc. 12) and a Motion to Appoint
Counsel (Doc. 13). However, Plaintiff's Objections and Motion to Appoint Counsel are
identical, each lodging objections to the Report and requesting the Court appoint
counsel for Plaintiff in his prisoner civil rights case. Thus, both shall be adjudicated
herein.
Plaintiff raises three objections to the Report. First, Plaintiff states that he, by
naming Ohio Department of Rehabilitation and Correction (“ODRC”) as a Defendant,
intended to name the Director of the ODRC as well. Magistrate Judge Litkovitz states in
the Report that “[iJn the interest of completeness, the Undersigned will consider the
relevant claims in the Complaint as if also raised against the Director [of the ODRC].”
(Report, Doc. 10, Pg. ID 109.) Thus, because Magistrate Judge Litkovitz considered the
relevant claims as raised against the Director of the ODRC, Plaintiff's first objection is
overruled.
Plaintiff second objection to the Report seems to argue that Plaintiff's
“falsification” claim against Defendant Thompson should proceed. Plaintiff argues that
Thompson’s “actions in falsifying an instrument further lend credibility to her willful
participation and knowledge of illegal and unconstitutional treatment of Plaintiff.”
(Objections, Doc. 12, Pg. ID 144.) However, as Magistrate Judge Litkovitz noted, “t]he
mere filing of an incomplete or false medical report does not state a claim of federal
constitutional dimension.” McDougald v. Eaches, No. 1:16-cv-900, 2016 WL 7015834, at *3
(S.D. Ohio Sept. 16, 2016), adopted, 2016 WL 7015785 (S.D. Ohio Nov. 30, 2016). Thus,
Plaintiff's second objection is overruled.
Plaintiff's third and final objection to the Report surrounds Defendants Captain
Pablo and Mrs. Sparks. While Plaintiff concedes that Pablo cannot be held liable for the
conduct of other Defendants, Plaintiff argues that Pablo and Sparks both had a duty to
protect Plaintiff and breached said duty. Plaintiff relies on Grifo & Company, PLLC v.
Cloud X Partners Holding, LLC, 485 F.Supp.3d 885 (E.D. Mich. 2020) to support this
contention. However, such case is distinguishable from the case at hand. Grifo &
Company is a breach of contract and negligence case between two contracting entities.
See id. at 889. Plaintiff’s case here, on the other hand, is a prisoner civil rights case.
Plaintiff cites no case law that establishes a special relationship between inmates and jail
personnel that would create such a duty to protect in situations such as Plaintiff alleges.
Thus, the Court is unpersuaded by Plaintiff's argument and _ Plaintiff's third objection is
overruled.
Lastly, in both the Objections and the Motion to Appoint Counsel, Plaintiff
requests that the Court appoints counsel to represent Plaintiff in his prisoner civil rights
case. However, “there is no right to counsel in prisoner civil rights cases. The
appointment of counsel in a civil proceeding is justified only by exceptional
circumstances.” Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004) (internal citations
omitted). The Court does not find that exceptional circumstances exist in this case that
would merit the appointment of counsel.
Therefore, for the foregoing reasons, the Court ADOPTS the Report and
Recommendations and Order (Doc. 10) in its entirety and ORDERS the following:
(1) The Court OVERRULES Plaintiff's Objections to the Report (Doc. 12).
(2) The Court DISMISSES Plaintiff's claims not ordered to proceed by
Magistrate Judge Litkovitz in the Report and Recommendation and Order
(Doc. 10), pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), for failure to
state a claim. This includes all claims against Defendants Pablo, Sparks, the
ODRC and its Director. It also includes claims against the other named
Defendants for deliberate indifference to a serious medical need (except the
narrowed claim against Defendant Thompson that is proceeding); for
inappropriate supervision and other claims based on state law; for
conspiracy, obstruction, and a pattern of official corruption; and relating to
the conditions of his confinement, intimidation and verbal harassment, and
sexual harassment or sexual imposition.
(3) The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that, for the reasons
discussed above, an appeal of any Order adopting this Report and
Recommendation would not be taken in good faith, and therefore, deny
Plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114
F.3d 601 (6th Cir. 1997).
(4) The Court DENIES Plaintiff's Motion to Appoint Counsel (Doc. 13).
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF QHIO
By: Man” .
JUDGE MATTHEW W. McFARLAND