# Essinger v. Ohio Department of Rehabilitation and Correction

> District Court, S.D. Ohio · June 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10382640

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 27, 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/10382640

## How later opinions describe it (automated extraction)

- holding that “failure to object to the magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district court’s ruling”
- holding that defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to the magistrate judge’s report and recommendation

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

ANDREW ESSINGER, : Case No. 2:23-cv-1800
:
Plaintiff, :
: District Judge Edmund A. Sargus, Jr.
vs. :
Magistrate Judge Elizabeth P. Deavers
:
OHIO DEPARTMENT OF :
REHABILITATION AND CORRECTION, :
:
Defendant. :

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Richland Correctional Institution, in Mansfield, Ohio, brings
this pro se action against defendant Ohio Department of Rehabilitation and Correction for
alleged violations of his civil rights while he was housed at the Noble Correctional Institution
(NCI), in Caldwell, Ohio. (Doc. 1-1). By separate Order, plaintiff has been granted leave to
proceed in forma pauperis.
This matter is now before the Court for a sua sponte review of the complaint to determine
whether the complaint or any portion of it should be dismissed because it 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. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C.
§ 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
LEGAL STANDARD
In enacting the original in forma pauperis statute, 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.” Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma
pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28
U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when
the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.

Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th
Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or
when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490
U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at
1199. The Court need not accept as true factual allegations that are “fantastic or delusional” in
reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at
470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to
state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
COMPLAINT
As an initial matter, although plaintiff names ODRC as the sole defendant in the case
caption of this lawsuit, his complaint lists NCI dentist Da[v]id Bowman as the sole defendant.

(See Doc. 1-1, at PageID 8). Given plaintiff’s pro se status, the Court liberally construes
plaintiff’s complaint to name both ODRC and Dentist Bowman as defendants. See e.g., Garza v.
L.C.M.H.F., No. 09-3144, 2009 WL 2912790, at *1 (D. Kan. Sept. 9, 2009) (liberally construing
pro se complaint to name entity included in case caption and individual listed in part two of the
complaint as defendants); see also Church v. City of Cleveland, No. 1:10-CV-1399, 2010 WL
4883433, at *3 (N.D. Ohio Oct. 26, 2010), report and recommendation adopted, No.
1:10CV1399, 2010 WL 4901739 (N.D. Ohio Nov. 23, 2010) (“A court may look to the body of
the complaint to determine the parties, in what capacity the defendants are being sued, and the
nature of the claims asserted.”).
In the complaint, plaintiff alleges that in January 2020 he had a loose tooth and requested
medical to have it pulled. According to plaintiff, a week passed and his face began to swell.
Plaintiff alleges that when he went to medical, they gave him one pill for the infection and told
him to return. Plaintiff further alleges that the dentist was supposed to give him more pills to get
the infection out but never did. It appears that when plaintiff’s tooth was pulled, his heart rate

increased and he was sent to the hospital for treatment. Plaintiff claims that a doctor at the
hospital told him that he was lucky to have come into the hospital because the infection had
spread to his body.
For relief, plaintiff seeks monetary damages. (Doc. 1-1, at PageID 11-12).
ANALYSIS
Liberally construing the complaint, see Erickson, 551 U.S. at 94, the Court understands
plaintiff to be bringing a 42 U.S.C. § 1983 claim for deliberate indifference to a serious medical
need under the Eighth Amendment to the United States Constitution and a state-law claim for
medical malpractice against defendants ODRC and Dentist Bowman.

For the reasons that follow, plaintiff’s complaint should be dismissed.
a. ODRC is not subject to suit under § 1983.
To the extent that plaintiff has named ODRC as a defendant to this action, plaintiff’s
claims against this defendant should be dismissed. Only “a person” acting under color of state
law is subject to suit or liability under 42 U.S.C. § 1983. Parker v. Michigan Dept. of Corr., 65
F. App’x 922, 923 (6th Cir. 2003) (Department of Corrections not a “person” under § 1983).
Moreover, to the extent that plaintiff seeks damages in the instant action, the Eleventh
Amendment bars plaintiff’s cause of action against ODRC because it is a state agency. See, e.g.,
Wingo v. Tennessee Dept. of Corr., 499 F. App’x 453, 454 (6th Cir. 2012) (citing Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). Therefore, the complaint should
be dismissed as to ODRC.
b. Plaintiff’s § 1983 Claim against Dentist Bowman Is Time-Barred.
Next, plaintiff’s § 1983 claim against Dentist Bowman is barred by the statute of

limitations. Plaintiff’s complaint is governed by Ohio’s two-year statute of limitations found in
Ohio Rev. Code § 2305.10. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989).
Although the statute of limitations is normally an affirmative defense raised by defendants, “if a
statute of limitations defense clearly appears on the face of a pleading, the district court can raise
the issue sua sponte.” Watson v. Wayne Cty., 90 F. App’x 814, 815 (6th Cir. 2004) (citing Pino
v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995)); see also Alston v. Tenn. Dept. of Corr., 28 F. App’x
475, 476 (6th Cir. 2002) (“Because the statute of limitations defect was obvious from the face of
the complaint, sua sponte dismissal of the complaint was appropriate.”). Moreover, “[w]here a
particular claim is barred by the applicable statute of limitations, it does not present an arguable
or rational basis in law or fact and therefore may be dismissed as frivolous under § 1915(e)(2).”

Fraley v. Ohio Gallia Cty., No. 97-3564, 1998 WL 789385, at *1 (6th Cir. Oct. 30, 1998).
“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). Generally, the
statute of limitations for filing an action alleging a constitutional violation begins to run “when
the plaintiff knows or has reason to know of the injury which is the basis of his action.” Eidson
v. Tenn. Dept. of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007). “[I]n determining when
the cause of action accrues in section 1983 actions, we have looked to what event should have
alerted the typical lay person to protect his or her rights.” Id. (quoting Kuhnle Bros., Inc. v. Cty.
of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)).
Plaintiff alleges that the conduct underlying his claim against Dentist Bowman occurred
in January 2020. (See Doc. 1-1, at PageID 11). Plaintiff was or should have been aware of his
alleged injuries at that time, when he allegedly had his tooth pulled and when a doctor at the
hospital allegedly told him that he was lucky to have been taken into the hospital because the
infection from his tooth had spread to his body. (See id.). Plaintiff, however, did not file the

underlying action until May 2023 (see Doc. 1-1), almost three and a half years after the
challenged conduct, and nearly a year and a half after the limitations period expired.
Because plaintiff’s constitutional claim against Dentist Bowman is barred by the statute
of limitations, this claim is subject to dismissal. See Wallace, 549 U.S. at 388 (clarifying that
statute of limitations begins to run when the litigant “has a complete and present cause of
action”). Plaintiff has not pleaded any facts in his complaint that would give rise to tolling under
Ohio state law. See Wallace, 549 U.S. at 394 (“We have generally referred to state law for
tolling rules, just as we have for the length of statutes of limitations.”); see also Ohio Rev. Code
§ 2305.16 (setting forth two disabilities—being within the age of minority and being of unsound

mind—that toll the statute of limitations for actions, such as this one, that are governed by Ohio
Rev. Code § 2305.10).
Notably, even considering the intervening Covid pandemic, the state-law tolling period
does not save plaintiff’s claims. The Ohio Court of Appeals has explained:
[O]n March 9, 2020, in response to the emerging COVID-19 pandemic, the
Governor of Ohio issued Executive Order 2020-01D, declaring a state of
emergency. In addition, on March 27, 2020, the Ohio General Assembly passed a
COVID-19 relief bill, 2020 Am. Sub. H.B. No. 197, which tolled, retroactively to
March 9, 2020, all statutorily established statutes of limitations, time limitations,
and deadlines in the Ohio Revised Code and Administrative Code until the
expiration of Executive Order 2020-01D or July 30, 2020, whichever came sooner.
Because the period of emergency was still in effect as of July 30, 2020, the tolling
period ended July 30, 2020. Chapman Enterprises, Inc. v. McClain, 165 Ohio St.3d
428, 2021-Ohio-2386, ¶ 11.
Roach v. Vapor Station Columbus, Inc., No. 21AP-55, 2022 WL 2211529, at *2 (Ohio Ct. App.
June 21, 2022) (footnote omitted). The less-than-five-month statutory tolling period in Ohio for
Covid circumstances (i.e., the time between March 9 and July 30, 2020) is insufficient to render
plaintiff’s § 1983 claim against Dentist Bowman, which was filed approximately a year after the
statute of limitations expired, timely.

Therefore, plaintiff’s § 1983 claim against Dentist Bowman should be dismissed with
prejudice as time barred.
c. Plaintiff’s State-Law Claims against Defendants
Having found that the Court should dismiss plaintiff’s federal claims, the undersigned
further recommends that the Court decline to exercise supplemental jurisdiction over plaintiff's
state-law claims and dismiss such claims without prejudice. See Harper v. AutoAlliance Int’l,
Inc., 392 F.3d 195, 210 (6th Cir. 2004) (although the exercise of supplemental jurisdiction under
28 U.S.C. § 1367 is a matter of discretion, when a court dismisses all federal claims before trial,
it generally should dismiss the state law claims as well).

Accordingly, the Court should DISMISS with prejudice plaintiff’s federal claims,
respectively, for failure to state a claim upon which relief may be granted and as time-barred, 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), and should DECLINE to exercise supplemental
jurisdiction over plaintiff’s state-law claims and DISMISS such claims without prejudice, 28
U.S.C. § 1367(c)(3).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's federal claims against defendants be DISMISSED with prejudice,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
2. The Court decline to exercise supplemental jurisdiction under 28 U.S.C.
§ 1367(c)(3) over plaintiff's state-law claims and DISMISS such claims without prejudice.
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of any Order adopting this Report and Recommendation would not be taken in
good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other

grounds, Jones v. Bock, 549 U.S. 199, 203 (2007).
IT IS THEREFORE ORDERED THAT:
THE CLERK OF COURT add defendant Dentist David Bowman to the docket.
PROCEDURE ON OBJECTIONS:
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
the magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted).

June 27, 2023 s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382640. Public record. Not legal advice.