Bates v. Ohio Department of Rehabilitation and Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROBERT BATES,

Plaintiff,

Case No. 1:22-cv-337

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Litkovitz

OHIO DEPARTMENT OF

REHABILITATION AND

CORRECTIONS, et al.,

Defendants.

OPINION AND ORDER

Robert Bates, a pro se prisoner, sues two corrections officers under an Eighth

Amendment failure-to-protect theory. The officers move to dismiss for failure to state

a claim, while Bates moves for summary judgment against them. In a Report &

Recommendation, the Magistrate Judge suggests denying both motions. The Court

agrees. So the Court ADOPTS the R&R (Doc. 49), DENIES the officers’ Motion to

Dismiss (Doc. 18), DENIES Bates’s Motion for Summary Judgment (Doc. 42), and

OVERRULES Bates’s Objections (Doc. 50).

BACKGROUND

The factual allegations in Bates’s Complaint have already been set out by the

Magistrate Judge in previous R&Rs and by this Court in previous opinions. The

Court, thus, won’t duplicate all those facts here. Instead, the Court will offer basic

context and recount what has happened since the R&R (Doc. 49).

Bates is an inmate suing several officers and administrators within the Ohio

Department of Rehabilitation and Corrections. (Id. at #579). This Court dismissed

several of his claims and let him proceed on claims against two corrections officers,

Woods and Milner, for their failure to protect him from being attacked by another

inmate, Ogletree. (Op. and Order, Doc. 48, #578; Doc. 49, #580).

The officers move to dismiss (Doc. 18), arguing that “Bates has failed to plead

facts sufficient to establish that they violated Bates’ Eighth Amendment rights,” and

also asserting that “they are entitled to qualified immunity.” (Doc. 49, #580). Bates

meanwhile moves for summary judgment on his failure-to-protect claim. (Doc. 42).

The Magistrate Judge stayed briefing on the motion for summary judgment until she

dealt with the motion to dismiss. (Doc. 46). In an R&R, she recommends denying both.

(Doc. 49). Nobody objects to her recommendation regarding the officers’ motion to

dismiss. But Bates objects to her recommendation regarding his motion for summary

judgment. (Doc. 50). He argues that the Court should grant his motion because the

officers did not respond to it. (Id.). The officers respond that his objections are general,

not specific. (Doc. 51). The matter is now ripe for review.

LEGAL STANDARD

Under Fed. R. Civ. P. 72(b)(3), district courts review an R&R de novo after a

party files a timely objection. This review, however, applies only to “any portion to

which a proper objection was made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL

5487045, at *1 (S.D. Ohio Sept. 30, 2013). In response to such an objection, “[t]he

district court ‘may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions.’” Id.

(quoting Fed. R. Civ. P. 72(b)(3)).

By contrast, if a party makes only a general objection, that “has the same

effect[] as would a failure to object.” Howard v. Sec'y of Health & Hum. Servs., 932

F.2d 505, 509 (6th Cir. 1991); Boyd v. United States, No. 1:16-cv-802, 2017 WL

680634, at *1 (S.D. Ohio Feb. 21, 2017). A litigant must identify each issue in the

R&R to which he objects with sufficient clarity that the Court can identify it, or else

the litigant waives the issue. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“The

objections must be clear enough to enable the district court to discern those issues

that are dispositive and contentious.”).

That said, Bates is proceeding pro se. A pro se litigant’s pleadings are to be

construed liberally and are subject to less stringent standards than formal pleadings

filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Franklin v. Rose,

765 F.2d 82, 84–85 (6th Cir. 1985). But pro se litigants still must comply with the

procedural rules that govern civil cases. McNeil v. United States, 508 U.S. 106, 113

(1993). And “the liberal treatment of pro se pleadings does not require the lenient

treatment of substantive law, and the liberal standards that apply at the pleading

stage do not apply after a case has progressed to the summary judgment stage.”

Johnson v. Steart, No. 08-1521, 2020 WL 8738105, at *3 (6th Cir. May 5, 2010).

For unobjected portions of the R&R, the advisory committee notes to Federal

Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself that

there is no clear error on the face of the record in order to accept the

recommendation.” See Redmon v. Noel, No. 1:21-CV-445, 2021 WL 4771259, at *1

(S.D. Ohio Oct. 13, 2021) (collecting cases).

LAW AND ANALYSIS

I. The Motion to Dismiss

The Magistrate Judge recommends denying the motion to dismiss. No party

objects to this recommendation, so the Court must review only for clear error.

She first sets out the basic motion-to-dismiss standard—“[a] complaint must

include sufficient facts to state a claim that is plausible on its face and not

speculative.” (Doc. 49, #581 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007))). Then she sets out the standard for an Eighth Amendment failure-to-protect

claim—“(1) the alleged mistreatment was objectively serious; and (2) the defendant

subjectively ignored the risk to the inmate’s safety.” (Id. at #582 (internal quotation

marks omitted) (quoting Zakora v. Chrisman, 44 F.4th 452, 468 (6th Cir. 2022)

(quoting Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011))).

She starts with the objective component. The Magistrate Judge explains that

this requires the inmate to allege that he endures “conditions posing a substantial

risk of serious harm.” (Id. (internal quotation marks omitted) (quoting Price v. Ohio

Dep’t of Rehab. & Corr., No. 1:19-cv-740, 2023 WL 32838, at *5 (S.D. Ohio Jan. 3,

2023))). And “knowledge that an inmate intends to seriously assault another inmate

can be enough to satisfy the objective component.” (Id. at #582–83 (collecting cases)).

As the Magistrate Judge notes, Bates alleges that Officer Woods and Officer

Milner were aware of Ogletree’s threats to him and either allowed or facilitated the

attack. (Id. at #583–84). The Magistrate Judge correctly concludes that this is

“sufficient to satisfy the objective component of his failure-to-protect claim.” (Id. at

#584). The Court finds no clear error here.

The Magistrate Judge then moves on to the subjective component. The

Magistrate Judge explains that this requires Bates to allege “that the individual

defendants (1) were aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists; (2) actually drew the inference; and (3)

consciously disregarded the risk.” (Id. at #584 (internal quotation omitted) (quoting

Price, 2023 WL 32838, at *5)). And “a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was obvious.” (Id. (internal

quotations omitted) (quoting Zakora, 44 F.4th at 472)).

She begins by examining Officer Woods. Bates alleges that Woods “heard

Ogletree’s threats to attack plaintiff,” “ordered Ogletree to stop,” shook “down

Ogletree’s cell for continuing to threaten” Bates, positioned himself away from Bates’s

cell “at time of the threatened attack,” and “misrepresent[ed] his position in the

conduct report.” (Id. at #584–85). These allegations have yet to be proven, but they

are more than enough to satisfy the subjective component at the motion-to-dismiss

stage. The Court finds no clear error here either.

She then moves on to Officer Milner. She explains that while Bates “does not

specifically allege that Milner heard the threats, he does allege that Woods heard the

threats while in the [guard] booth with Milner.” (Id. at #585). Drawing every

inference in favor of Bates and liberally construing his pleading, given his pro se

status, it is reasonable to conclude that he is alleging a fact (their physical proximity)

that makes it plausible that Milner heard the threats too.1 And Bates alleges that

“Milner opened up every door [in Bates’s cell block] in violation of safety and security

policies to intentionally and deliberately allow inmate Ogletree access to attack and

assault” Bates in his cell. (Id. at #585 (cleaned up)). These allegations also satisfy the

subjective component, and the Court sees no clear error.

Finally, the Magistrate Judge considers the officers’ assertion of qualified

immunity. To begin, note that the Magistrate Judge is not mistaken for considering

qualified immunity at the motion-to-dismiss stage. Unlike other affirmative defenses,

which are typically considered later, “a qualified immunity defense can be raised at

various stages of the litigation including at the pleading stage in a motion to dismiss,

after discovery in a motion for summary judgment, or as an affirmative defense at

trial.” Eng. v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994) (emphasis added). But when

qualified immunity is raised is different from when it is granted. “Although an

officer’s entitlement to qualified immunity is a threshold question to be resolved at

the earliest possible point, that point is usually summary judgment and not dismissal

under Rule 12,” because qualified immunity is such a fact-dependent inquiry. Wesley

v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015). Here, that typical timeline proves

true once more. It is too early to tell whether the officers are entitled to qualified

immunity.

1 In his objections, Bates complains about the Court inferring an allegation that Milner heard

the threats, (Doc. 50, #627), but that is likely because Bates does not realize that this

inference actually helps him. As Bates is proceeding pro so, the Court will liberally construe

his arguments in his favor.

The Magistrate Judge begins her qualified immunity analysis by setting out

the relevant standard—“[t]o overcome a claim of qualified immunity, a plaintiff must

demonstrate (1) that government officials violated a constitutional right, and (2) that

the unconstitutionality of their conduct was clearly established when they acted.”

(Doc. 49, #586 (citing Murray v. Ohio Dep’t of Corr., 29 F.4th 779, 786 (6th Cir. 2022))).

The officers say that “they are entitled to qualified immunity because ‘plaintiff

created the events giving rise to the alleged attack.’” (Id. at #587 (citing Doc. 18,

#393). They cite Woods’ conduct report which says that he witnessed Bates “throw

what appeared to be urine and feces at Inmate Ogletree.” (Doc. 18, #389 (citing

Compl., Doc. 1, #26)). But Bates disputes that. (Doc. 1, #26–27). The Magistrate Judge

rightly notes that “[a]t this pre-discovery stage of litigation, the Court must accept

plaintiff’s well-pleaded factual allegations as true.” (Doc. 49, #587 (citing Crawford v.

Tilley, 15 F.4th 752, 760 (6th Cir. 2021))). At least for now, then, the officers are not

entitled to qualified immunity. So the Court ADOPTS this portion of the R&R (Doc.

49) and DENIES the Motion to Dismiss (Doc. 18).

II. The Motion for Summary Judgment

The Magistrate Judge recommends denying the motion for summary

judgment. Bates offers objections, but they only center on the Magistrate Judge

denying summary judgment despite the officers not responding to Bates’s motion.

(See Doc. 50, #625–30). So the Court reviews that decision de novo but only reviews

the rest of her analysis for clear error.

The Magistrate Judge starts by laying out the relevant standard—drawing all

inferences in favor of the non-moving party, the Court grants summary judgment

when “there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” (Doc. 49, #587 (citing Satterfield v. Tennessee, 295 F.3d

611, 615 (6th Cir. 2002))).

As noted, though, Bates’s argument doesn’t really turn on that standard.

Rather, he says that, because the officers failed to respond to his motion for summary

judgment, he is entitled to it.2 Not so. “[A] district court cannot grant summary

judgment in favor of a movant simply because the adverse party has not responded.”

Delphi Auto. Sys., LLC v. United Plastics, Inc., 418 F. App’x 374, 381 (6th Cir. 2011)

(internal quotation marks omitted) (quoting Carver v. Bunch, 946 F.2d 451, 454–55

(6th Cir. 1991)). Instead, the Court must “examine the movant’s motion for summary

judgment to ensure that he has discharged [his] burden” at summary judgment. Id.

So despite the officers not responding, Bates must still show he is entitled to

judgment as a matter of law and there is no genuine issue of material fact. He has

not made that showing.

The Magistrate Judge concluded that Bates had not shown that he was entitled

to judgment as a matter of law because he “failed to offer evidence sufficient to

establish the subjective component of his failure-to-protect claim against either

officer.” (Doc. 49 at #590). She says that while Bates provides evidence establishing

that Woods was not near Bates’s cell and Milner opened all the cells in Bates’s block,

2 Note too that the officers did not respond because the Magistrate Judge stayed the briefing

for the summary judgment motion. There is no way Bates can argue they are at fault.

that evidence does not go as far as establishing that the officers intentionally

facilitated Ogletree’s assault or consciously disregarded the risk of such an assault.

(Id.). The Court sees no clear error here.

She also identifies a genuine dispute of material fact. In his report, Woods

alleges that Bates started the fight by throwing urine and feces at Ogletree. (/d.).

This is a very different story from the one Bates tells. A jury, not the Court, needs to

sort out that factual dispute. Thus, again, the Court sees no clear error in this

analysis. So the Court ADOPTS this portion of the R&R (Doc. 49) and DENIES the

Motion for Summary Judgment (Doc. 42).

CONCLUSION

For the reasons stated above, the Court ADOPTS the R&R (Doc. 49), DENIES

the officers’ Motion to Dismiss (Doc. 18), DENIES Bates’s Motion for Summary

Judgment (Doc. 42), and OVERRULES Bates’s Objections (Doc. 50).

SO ORDERED.

July 5, 2023

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE