# Fortson v. Henness

> District Court, S.D. Ohio · January 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10381668

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** January 25, 2023
- **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/10381668

## How later opinions describe it (automated extraction)

- applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TIMOTHY FORTSON,

Plaintiff,

v. Civil Action 1:22-cv-410
Judge Douglas R. Cole
Magistrate Judge Chelsey M. Vascura
LT. CHARLES HENNESS, et al.,

Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Timothy Fortson, an Ohio inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983 against several corrections officers
employed at Warren Correctional Institution (“WCI”), alleging that Defendants employed
excessive force and were deliberately indifferent to Plaintiff’s serious medical needs in violation
of his constitutional rights. The Court previously granted Plaintiff’s motion for leave to proceed
in forma pauperis (ECF No. 3); accordingly, this matter is before the Court for the initial screen
of Plaintiff’s Amended Complaint as required by 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);
see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the
initial screen, for the reasons that follow, Plaintiff MAY PROCEED on his excessive force
claims against Defendant Henness in his individual capacity arising from the August 2020
incident and against Defendants Anderson, Capella, and Mann in their individual capacities
arising from the April 2022 incident. It is RECOMMENDED that the Court DISMISS
Plaintiff’s remaining claims pursuant to 28 U.S.C. §§ 1915A and 1915(e).
I. BACKGROUND
Plaintiff’s Amended Complaint alleges two incidents of excessive force. Plaintiff first

alleges that Defendant Charles Henness used excessive force by pinning Plaintiff against the side
of a medical cart such that Plaintiff was hanging over the side of the moving cart and hit his
head. Plaintiff could smell only exhaust fumes through his mask. (Am. Compl. ¶¶ 7–8, ECF No.
15.)
Plaintiff further alleges that in April 2022, Plaintiff called for medical assistance after
falling from his bed and hitting his head. Several corrections officers responded. Plaintiff alleges
that Defendants Anderson and Capella used unnecessary force by tossing Plaintiff onto a medical
cart, such that Plaintiff landed painfully on his cuffed hands. Plaintiff further alleges that
Defendant Mann pushed Plaintiff’s leg over Plaintiff’s head while Plaintiff screamed. Plaintiff
then alleges that Defendant Henness ordered Defendants Knick, Anderson, and Capella to

shackle Plaintiff, in the course of which Defendant Knick “[did] something to [Plaintiff’s] right
lower shin,” which “may have left a hole in [Plaintiff’s] leg.” Plaintiff further alleges that
Defendants ignored his serious head wound and concussion and left him in cuffs and shackles for
more than fifteen minutes. (Id. ¶¶ 9–14.) Plaintiff also names Corrections Officer Starkey as a
Defendant involved in the April 2022 incident, but Plaintiff does not allege any specific action
by Starkey other than generally alleging he engaged in “the use of force.” (Id. ¶ 12.)
Plaintiff’s Amended Complaint seeks compensatory and punitive damages.
II. STANDARD OF REVIEW
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), which
provides in pertinent part as follows:
(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; [or]
(ii) fails to state a claim on which relief may be granted. . . .
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. See
also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion
of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be

granted”).
Further, 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 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) (cleaned up). A complaint will not
“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).
Instead, in order to state a claim upon which relief may be granted, “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. ANALYSIS
The undersigned construes Plaintiff’s Amended Complaint to advance claims for
excessive force arising out of the August 2020 and April 2022 incidents and claims for deliberate
indifference to serious medical needs arising out of the April 2022 incident. The undersigned
considers each claim in turn.

A. Excessive Force
The Eighth Amendment prohibits the unnecessary and wanton infliction of pain against
prisoners. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (citing Whitley v. Albers, 475
U.S. 312, 319 (1986)). To make out a claim under the Eighth Amendment, the prisoner must
satisfy both an objective and a subjective component. Id. (citing Moore v. Holbrook, 2 F.3d 697,
700 (6th Cir.1993)).
The objective component requires the pain inflicted to be “sufficiently serious.” Wilson v.
Seiter, 501 U.S. 294, 298 (1991). Yet the seriousness of the injuries is not by itself dispositive.
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). “When prison officials maliciously and
sadistically use force to cause harm, contemporary standards of decency always are violated . . .
[w]hether or not significant injury is evident.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).

“Otherwise, the Eighth Amendment would permit any physical punishment, no matter how
diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Id.
The subjective component focuses on the state of mind of the prison officials. Williams,
631 F.3d at 383. The “core judicial inquiry” is “whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 449
U.S. at 37 (quoting Hudson, 503 U.S. at 7).
Accepting Plaintiff’s allegations as true, the undersigned finds that Plaintiff has plausibly
alleged excessive force claims against Defendant Henness in his individual capacity arising from
the August 2020 incident and against Defendants Anderson, Capella, and Mann in their
individual capacities arising from the April 2022 incident. Plaintiff therefore MAY PROCEED
on these claims.
Plaintiff has not, however, alleged any specific actions by Defendant Henness in
connection with the April 2022 incident that could satisfy the objective component of an

excessive force claim. Plaintiff’s allegations regarding Henness in connection with the April
2022 incident are limited to Henness’s order for Plaintiff to be shackled. In the absence of any
allegations that the shackling caused pain, lasting injury, or was inflicted in a manner “repugnant
to the conscience of mankind,” this type of de minimis use of physical force is “necessarily
exclude[d] from constitutional recognition.” Hudson, 503 U.S. at 9–10 (quoting Whitley, 475
U.S. at 327).
Further, Plaintiff alleges only that Knick did “something” to his shin, and alleges no
specific conduct on the part of Starkey. The Sixth Circuit “has consistently held that damage
claims against government officials arising from alleged violations of constitutional rights must

allege, with particularity, facts that demonstrate what each defendant did to violate the asserted
constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v.
Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002)) (emphasis in original).
“[C]ategorical references to ‘Defendants’” do not meet this standard. Marcilis v. Twp. of
Redford, 693 F.3d 589, 596–97 (6th Cir. 2012). Neither do allegations that an individual
defendant “was present and perhaps involved in [the plaintiff’s] restraint,” without allegations as
to the unconstitutionality of the individual defendant’s actions. Lanman, 529 F.3d at 684.
Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims for
excessive force against Defendants Knick, Starkey, and Henness in connection with the April
2022 incident.
B. Deliberate Indifference to Serious Medical Need
The undersigned construes Plaintiff’s Amended Complaint to advance an Eighth

Amendment medical indifference claim arising from the fifteen-minute delay of medical care to
treat Plaintiff’s April 2022 head injury. It is well established that “[t]he Eighth Amendment
forbids prison officials from unnecessarily and wantonly inflicting pain on an inmate by acting
with deliberate indifference toward [his] serious medical needs.” Jones v. Muskegon Cty., 625
F.3d 935, 941 (6th Cir. 2010) (internal quotations omitted). As with Plaintiff’s claims for
excessive force, a claim for deliberate indifference “has both objective and subjective
components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The United States
Court of Appeals for the Sixth Circuit has explained:
The objective component mandates a sufficiently serious medical need. [Blackmore
v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004).] The subjective component
regards prison officials’ state of mind. Id. Deliberate indifference “entails
something more than mere negligence, but can be satisfied by something less than
acts or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Id. at 895–96 (internal quotation marks and citations omitted). The
prison official must “be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 896 (internal quotation marks and citation omitted).
Barnett, 414 F. App’x at 787–88; see also Jones, 625 F.3d at 941 (“[T]he prison official must
have acted with a state of mind similar to recklessness. Thus, to prove the required level of
culpability, a plaintiff must show that the official: (1) subjectively knew of a risk to the inmate’s
health, (2) drew the inference that a substantial risk of harm to the inmate existed, and
(3) consciously disregarded that risk.” (citations omitted)).
The Sixth Circuit has also noted that in the context of deliberate indifference claims:
“[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received inadequate
medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976).
Where a prisoner alleges only that the medical care he received was inadequate,
“federal courts are generally reluctant to second guess medical judgments.” Id.
However, it is possible for medical treatment to be “so woefully inadequate as to
amount to no treatment at all.” Id.
Alspaugh, 643 F.3d at 169. See also Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (“If
the plaintiff’s claim, however, is based on the prison’s failure to treat a condition adequately . . .
the plaintiff must place verifying medical evidence in the record to establish the detrimental
effect of the delay in medical treatment.” (internal quotation marks and citation omitted)). “In
examining whether a claimed injury is ‘sufficiently serious’” to sustain a claim for deliberate
indifference, “courts look to the effect of any delay in treatment caused by an officer’s inaction.”
Vaughn v. City of Lebanon, 18 F. App’x 252, 274 (6th Cir. 2001) (emphasis in original).
Specifically, a plaintiff “who complains that delay in medical treatment rose to a constitutional
violation must place verifying medical evidence in the record to establish the detrimental effect
of the delay in medical treatment to succeed.” Id. (citing Napier v. Madison Cty., Ky., 238 F.3d
739, 742 (6th Cir. 2001)).
Here, Plaintiff has not alleged any detrimental physical effect from the fifteen-minute
delay in medical care to treat his head injury. It is therefore RECOMMENDED that this claim
be DISMISSED against all Defendants.
IV. DISPOSITION
For the foregoing reasons, Plaintiff MAY PROCEED on his excessive force claims
against Defendant Henness in his individual capacity arising from the August 2020 incident and
against Defendants Anderson, Capella, and Mann in their individual capacities arising from the
April 2022 incident. It is RECOMMENDED that the Court DISMISS Plaintiff’s remaining
claims pursuant to 28 U.S.C. §§ 1915A and 1915(e).
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381668. Public record. Not legal advice.