# Cowan v. Doe 1

> District Court, S.D. Ohio · June 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10382572

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

TREMAINE D. COWAN, : Case No. 1:23-cv-315
:
Plaintiff, :
: Judge Matthew W. McFarland
vs. :
Magistrate Judge Karen L. Litkovitz
:
JOHN DOE SOCF DEFENDANTS, et al., :
:
Defendants. :

ORDER and
REPORT AND RECOMMENDATION

Tremaine D. Cowan, a state prisoner proceeding in forma pauperis and without the
assistance of counsel, has filed a civil rights action with this Court. The matter is before the
Undersigned for an initial screening of the Complaint (Doc. 1-1) as required by law. 28 U.S.C. §
1915A(a); 28 U.S.C. § 1915(e)(2).
For the reasons that follow, the Undersigned concludes that Plaintiff’s Eighth
Amendment and state-law tort claims against John Doe 2, John Doe 3, John Doe 4, John Due 5
may PROCEED to further development at this time. The Undersigned RECOMMENDS that
the Court DISMISS any claim against John Doe 1, and any claim under Title II of the Americans
with Disabilities Act (ADA).
I. Initial Screening Standard
Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or
employee of a governmental entity,” and is proceeding in forma pauperis, the Court is required
to conduct an initial screening of his Complaint. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2).
The Court must dismiss a complaint, or any portion of it, that 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. §§ 1915A(b) and 1915(e)(2).
To state a claim for relief, a complaint must set forth “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must

construe a complaint in plaintiff’s favor, accept all well-pleaded factual allegations as true, and
evaluate whether the complaint contains “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).
In the interest of justice, this Court is also required to construe a pro se complaint
liberally and to hold it “to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)
and citing Fed. R. Civ. P. 8(f) [now (e)]). Even with such a liberal construction, a pro se
complaint must still adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989). Specifically, a pro se “complaint ‘must contain either direct or inferential
allegations respecting all the material elements’ to recover under some viable legal theory.”
Barhite v. Caruso, 377 F. App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d
712, 716 (6th Cir. 2005)). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.
II. Parties and Claims
Plaintiff Tremaine D. Cowan is a prisoner in the custody of the Ohio Department of
Rehabilitation and Correction (ODRC), currently incarcerated at the Southern Ohio Correctional
Facility (SOCF). (Complaint,1 Doc. 1-1, PageID 5).
Plaintiff appears to sue five “John Doe” Defendants: John Doe 1, a commissary worker

at SOCF; John Doe 2, a lieutenant at SOCF; and John Does 3 – 5, who appear to be part of a
“SRT Team” at SOCF. (Complaint, ¶¶ 4-6, 15, 22). Plaintiff sues John Doe 1 in his official
capacity only; he sues John Does 2 – 5 in their individual and official capacities. (Id., ¶¶ 4-5).
Plaintiff alleges that on October 27, 2022, John Doe 1 refused to give him his
commissary items. (Complaint, ¶¶ 7-10). Plaintiff was confused, frustrated, and highly upset,
which he expressed to John Doe 2 and a non-party sergeant. (Id., ¶¶ 10-13). John Doe 2 sprayed
Plaintiff with OC spray (mace). (Id., ¶ 14). Then, John Doe 2 left and returned with “an SRT
Team,” presumably John Does 3 – 5. (Id., ¶ 15).
Plaintiff alleges that these Defendants repeatedly shot him with “what looked like an AR-
15 style mace ball gun,” used a flash grenade, punched him in the face and body, including in the

testicles, tightened his handcuffs to the point of bleeding, and broke his right pinky finger.
(Complaint, ¶¶ 15-17, 19, 22).
Plaintiff raises his claims under 42 U.S.C. § 1983. (Complaint, ¶ 1). He alleges that the
excessive force used by John Does 2 – 5 violates the Cruel and Unusual Punishments Clause of
the Eighth Amendment. (Id., ¶ 22). He says that he “will be adding a state law tort supplement
claim under Title II ADA Act For Assault & Battery.” (Id., ¶ 23; see also ¶¶ 31-32 (indicating

1 For better readability, the Undersigned will cite to Plaintiff’s Complaint in this case, currently of record as Docket
Entry 1-1, simply as the Complaint. Paragraph numbers are cited for greater precision.
Plaintiff seeks a declaration with respect to the ADA and raises state-law tort claims for assault
and battery)).
Plaintiff seeks declaratory and injunctive relief. (Complaint, ¶¶ 1, 24, 26, 31). He also
seeks monetary damages from Defendants in their individual capacities, and other relief. (Id., ¶¶

26-32).
III. Discussion
At this stage of the proceedings, without the benefit of an answer or other briefing, the
Undersigned concludes that Plaintiff’s claims under the Eighth Amendment may PROCEED
against John Doe 2, John Doe 3, John Doe 4, and John Doe 5 in their individual capacity. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (“In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison officials, who may not . . . use
excessive physical force against prisoners.”). His assault and battery claims under Ohio law may
also PROCEED. See Madej v. Maiden, No. 2:16-cv-658, 2018 WL 5045768, at *15 (S.D. Ohio
Oct. 17, 2018), aff’d, 951 F.3d 364 (6th Cir. 2020) (internal citations omitted) (“In Ohio, an
assault is an unlawful offer or attempt, coupled with a present ability, to inflict an injury upon the

person of another. Battery is defined as ‘an intentional contact with another that is harmful or
offensive.’”). These claims are deserving of further development and may proceed at this
juncture.
Plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) &
1915A(b).

A. John Doe 1
Plaintiff has not stated a claim on which relief may be granted against John Doe 1. He
alleges only that John Doe 1, a commissary worker, would not give him his purchased
commissary items on October 27, 2022. (Complaint, ¶¶ 4, 7-10). The reason for John Doe 1’s
refusal was that Plaintiff did not present proper identification. (Id., ¶¶ 8-9). Plaintiff says he

presented “the I.D. we are Given by the Institution until a new one is printed & is a replica of the
Original I.D. Card.” (Id., ¶ 10; see also IFP Application, Doc. 5, PageID 33 (appearing to reflect
charges for replacing Plaintiff’s inmate ID)).
Plaintiff does not allege that John Doe 1 participated in the events that occurred after
their conversation. (See Complaint, ¶ 9 (noting that John Doe 1 walked away); ¶ 22 (alleging
that John Does 2 – 5 violated his Eighth Amendment rights)). Plaintiff also does not allege that
he never received his commissary items, or that John Doe 1 stole or kept Plaintiff’s personal
property.
Whether John Doe 1 wrongly withheld commissary items from Plaintiff on October 27
because he allegedly lacked proper identification may be a question of ODRC policy. Plaintiff

cannot base a § 1983 claim on a violation of ODRC (state) policy, however. See Brown v.
Mahlman, No. 1:22-cv-239, 2022 WL 17817615, at *3 (S.D. Ohio Dec. 19, 2022) (dismissing
alleged violations of ODRC policy because they “fall outside the scope of § 1983”). Moreover,
any constitutional claim for the deprivation of personal property must allege “that state remedies
for redressing the wrong are inadequate,” which Plaintiff has not done here. Perdue v. Ohio
Dep’t of Corr., No. 1:13-cv-878, 2014 WL 661707, at *5 (S.D. Ohio Feb. 19, 2014) (citing
Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983)).
Because Plaintiff does not identify any federal or constitutional right affected by John
Doe 1’s actions, and the Undersigned is unable to discern any plausible claim in the allegations

against him, any claims against John Doe 1 should be dismissed.
B. Title II of the ADA
Plaintiff also does not state a plausible claim under Title II of the Americans with
Disabilities Act. “Title II of the ADA provides, in pertinent part, that no qualified individual
with a disability shall, because of that disability, ‘be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.’”
Mingus v. Butler, 591 F.3d 474, 481-82 (6th Cir. 2010) (quoting 42 U.S.C. § 12132). The ADA
applies to state prisons. Id. (citing Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998)).
“Title II requires the plaintiff to show that: (1) he has a disability; (2) he is a ‘qualified
individual’; and (3) he was ‘being excluded from participation in, denied the benefits of, or
subjected to discrimination under the program because of’ his disability.” Larson v. Eppinger,
No. 2:20-cv-4997, 2021 WL 2659998, at *6 (S.D. Ohio June 29, 2021) (citing Anderson v. City
of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015) (quoting 42 U.S.C. § 12132)).
To the extent that he intended to do so, Plaintiff does not state an ADA claim in the
Complaint. Although he mentions the ADA and alleges that he was sprayed with mace several

times in part because of his disability (Complaint, ¶ 16), he does not—among other things—
identify what his disability is. There is simply not enough factual information in the Complaint
to state a plausible claim in this respect. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”). To the
extent Plaintiff is noting in the Complaint that he will seek to add an ADA claim in the future
(Complaint, ¶ 23), the sufficiency of that claim can be considered at that time.

C. Official Capacity Claims
Plaintiff is prohibited from bringing a suit for damages against any “state actor”

defendant in his or her official capacity. “The Eleventh Amendment protects a state official from
suit for monetary damages in his or her official capacity because ‘a suit against a state official in
his or her official capacity is not a suit against the official but rather is a suit against the official’s
office. . . . As such, it is no different from a suit against the State itself.’” Zakora v. Chrisman,
44 F. 4th 452, 474 (6th Cir. 2022) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 63-

64, 71 (1989) (citations omitted)). See also Monell v. Dep’t of Soc. Services, 436 U.S. 658, 690
n.55 (1978)) (holding that “neither a State nor its officials acting in their official capacities are
‘persons’” who may be held liable for constitutional violations in a § 1983 action); see also
Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998) (and cases cited
therein) (“It is well-established that a plaintiff cannot sue a state agency or any of its employees
in their official capacities for monetary damages.”). Here, all of the SOCF John Doe defendants
are state officials or employees. Thus, the claims for monetary damages against them in their
official capacity are barred by the Eleventh Amendment. The official capacity claims should be
dismissed.
D. Proceeding further against the John Doe Defendants

“Although designation of a ‘John Doe’ or ‘unknown’ defendant is not favored in the
federal courts, it is permissible when the identity of the alleged defendant is not known at the
time the complaint is filed and plaintiff could identify defendant through discovery.” Robinson
v. Doe, No. 1:07-cv-729, 2009 WL 650383, at *2 (S.D. Ohio March 10, 2009) (collecting cases):
The Federal Rules of Civil Procedure do not require the Court to dismiss unknown
defendants simply because the plaintiff is unaware of the identity of those
defendants at the time of the filing of the complaint. Rather, “the plaintiff should
be given the opportunity through discovery to identify the unknown defendants,
unless it is clear that discovery would not uncover the identities, or that the
complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 642; see
also Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).

Id. Under the circumstances of this case, it is appropriate to permit service of the complaint on a
high-ranking official who could identify the John Doe defendants through discovery. The SOCF
Warden is in a position to know or determine the identities of the corrections officers plaintiff
has identified as John Doe. The Court shall order service of the summons and complaint on the
SOCF Warden for this limited purpose only. Once the Warden is served and has filed a response
to plaintiff's complaint, plaintiff shall be permitted to serve discovery on the Warden to

determine the identities of the John Doe defendants. Upon discovery of the full names of the
unidentified defendants, plaintiff will be required to amend his complaint to identify them and
the SOCF Warden will be dismissed. See Slocum v. Bear, No. 1:18-cv-423, 2019 WL 2234227,
at *3 (S.D. Ohio May 6, 2019), report and recommendation adopted, 2019 WL 2233633 (S.D.
Ohio May 23, 2019); Murray v. Ohio Dep’t of Corr., No. 1:14-cv-168, 2014 WL 1382401, at *4
(S.D. Ohio Apr. 8, 2014). See also Mincy v. Hamilton Cnty. Just. Ctr., No. 1:20-cv-00822, 2021
WL 5754729, at *5 (S.D. Ohio Dec. 3, 2021) (and numerous cases cited therein) (“The Court,
however, believes that adding [Hamilton County, Ohio] Sherriff McGuffey as a party for the
limited purpose of identifying the full names of the Defendants is the more pragmatic and
expeditious option that preserves both this Court’s and the U.S. Marshal’s limited resources

while acknowledging the serious nature of the allegations that Plaintiff raises in his complaint.”).
Before service may be issued on the John Doe Defendants, Plaintiff must file a Motion to
Issue Service that identifies the Defendant(s) by name. Plaintiff is ORDERED to file the
Motion to Issue Service if and when he discovers the identity of the John Doe Defendants. The
Motion must attach a completed U.S. Marshal form and summons form for each Defendant to be
served. Plaintiff is advised that no service will be issued on the John Doe Defendants unless
Plaintiff complies with this Order.
Plaintiff should not delay in proceeding against the John Doe Defendants. See generally
Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (“Sixth Circuit precedent clearly holds that
new parties may not be added after the statute of limitations has run”); Fed. R. Civ. P. 4(m)
(concerning time limits for service).
IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
& 1915A(b) for failure to state a claim upon which relief can be granted, with the
exception of Plaintiff’s Eighth Amendment and state-law tort claims against Defendants
John Doe 2, John Doe 3, John Doe 4, and John Doe 5 in an individual capacity. This
includes any claims against John Doe 1 and any intended claim under Title II of the
ADA.

2. The Court should CERTIFY pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any
Order adopting this Report and Recommendation would not be taken in good faith, and
DENY Plaintiff leave to appeal it in forma pauperis. See McGore v. Wrigglesworth, 114
F.3d 601 (6th Cir. 1997).

IT IS THEREFORE ORDERED THAT:

1. Within thirty (30) days of receipt of this Order, plaintiff SHALL submit completed
summons and U.S. Marshal forms for the current SOCF Warden, Cynthia Davis.

2. The Clerk of Court is DIRECTED to send to plaintiff a summons form and a U.S.
Marshal form for this purpose. Upon receipt of the completed summons and U.S.
Marshal forms, the Court ORDERS service of process by the United States Marshal in
this case as directed by Plaintiff. Plaintiff shall be granted leave to proceed against
Warden Davis solely for the purpose of determining the identity of Defendants John Doe
2, John Doe 3, John Doe 4, and John Doe 5.

3. The CLERK OF COURT is DIRECTED to add SOCF Warden Cynthia Davis as an
interested party to the case.

4. Plaintiff SHALL file a Motion To Issue Service, including updated U.S. Marshal and
summons forms, if and when Plaintiff discovers the identity of Defendants John Doe 2,
John Doe 3, John Doe 4, and John Doe 5 through discovery. No service will be issued on
Defendants John Doe 2, John Doe 3, John Doe 4, and John Doe 5 unless Plaintiff
complies with this Order.

5. Plaintiff is ORDERED that he must keep this Court informed of his current address, and
promptly file a Notice of New Address if he is released or transferred.

6. The Clerk of Court is DIRECTED to forward a courtesy copy of this Order to the Ohio
Attorney General’s Office, Criminal Justice Section, Corrections Litigation Unit, 30 East
Broad Street, 23rd Floor, Columbus, Ohio 43215.
Notice Regarding Objections to this Report and Recommendation
If any party objects to this Report and Recommendation (“R&R”), the party may serve
and file specific, written objections to it within fourteen days after being served with a copy
thereof. Fed. R. Civ. P. 72(b). All objections shall specify the portion(s) of the R&R objected to
and shall be accompanied by a memorandum of law in support of the objections. The Court may
extend the fourteen-day objections period if a timely motion for an extension of time 1s filed.
A Judge of this Court will make a de novo determination of those portions of the R&R to
which objection is made. Upon proper objection, 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 R&R will result in a
waiver of the right to have the District Judge review the R&R de novo, and will also operate as a
waiver of the right to appeal the decision of the District Court adopting the R&R. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Tune 20, 2023 Henn K Rethonh
KAREN L. LITKOVITZ
UNITED STATES MAGISTRATE JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382572. Public record. Not legal advice.