The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
TREMAINE D. COWAN, : No. 23-cv-315
Plaintiff, Judge Matthew W. McFarland
JOHN DOE SOCF
DEFENDANTS, et al., :
Defendant.
ORDER ADOPTING ORDER AND REPORT AND RECOMMENDATIONS
This action is before the Court upon the Order and Report and Recommendation
(“Report”) (Doc. 8) of United States Magistrate Judge Karen L. Litkovitz, to whom this
case is referred pursuant to 28 U.S.C. § 636(b). In the Report, Magistrate Judge Litkovitz
recommends that certain claims of Plaintiff's be dismissed with prejudice. Plaintiff timely
filed Objections (Doc. 11) to the Report pursuant to Fed. R. Civ. P. 72(b). Plaintiff objects
to the following recommendations: (1) the recommendation that all claims against John
Doe 1 be dismissed with prejudice, (2) the recommendation that Plaintiff's claim under
Title II of the ADA be dismissed with prejudice, and (3) the recommendation that
Plaintiff's official capacity claims be dismissed with prejudice. Each are discussed in turn.
I. John Doe 1
Plaintiff first objects to the recommendation that all claims against John Doe 1 be
dismissed. Plaintiff's claims against John Doe 1 all center around John Doe 1’s alleged
withholding of Plaintiff's commissary bag. Plaintiff states that John Doe 1 purposefully
withheld Plaintiff's commissary bag in an effort to “trigger” Plaintiff. (Objections, Doc.
11, Pg. ID 71.) Withholding Plaintiff's commissary bag may constitute a violation of Ohio
Department of Rehabilitation and Corrections (“ODRC”) policy. However, in order to
maintain a § 1983 claim, Plaintiff was required to allege that John Doe 1 deprived him of
some right secured by the Constitution or laws of the United States. Perdue v. Ohio Dept.
of Corrections, No. 1:13cv878, 2014 WL 661707, at *3 (S.D. Ohio Feb. 19, 2014). But
violations of ODRC policy or state law fall outside the scope of § 1983. Brown v. Mahlman,
No., 2022 WL 17817615, at *3 (S.D. Ohio Dec. 19, 2022). Therefore, the first objection is
overruled.
II. _—‘ Title Il of the ADA
Next, Plaintiff objects to the recommendation that his claim under Title II of the
ADA be dismissed with prejudice. Title II of the ADA states that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II applies to
federal and state prisons. Mingus v. Butler, 591 F.3d 474, 482 (6th Cir. 2010).
The Report recommends that Plaintiff's ADA claim be dismissed, as Plaintiff failed
to adequately plead that he has a disability. Under the ADA, Plaintiff may establish that
he is disabled by showing that: (1) he has “a physical or mental impairment that
substantially limits one or more major life activities,” (2) that he has “a record of such an
impairment,” or (3) that he is “regarded as having such an impairment.” Turner v. Mich.
Dept. of Corrections, No. 22-1562, 2023 WL 2755655, at *3 (6th Cir. 2023) (quoting 42 U.S.C.
§ 12102(1)(A)-(C)). The Complaint fails to establish any of the disability definitions. (See
Compl., Doc. 7.) And, while Plaintiff does argue in his Objections that he has multiple
impairments, such allegations were not within the Complaint. Thus, the Magistrate Judge
never had the opportunity to consider the allegations and no compelling reasons exist
that would permit this Court to consider the allegations raised at the district court stage.
See Murr v. U.S., 200 F.3d 895, 902 n. 1 (6th Cir. 2000).
Therefore, the second objection is overruled.
III. Official Capacity
Lastly, Plaintiff objects to the recommendation that Plaintiffs official capacity
claims be dismissed. However, this objection is “vague, general, [and] conclusory” and,
consequently, fails to “meet the requirement of specific objections.” Cole v. Yukins, 7 F.
Appx. 354, 356 (6th Cir. 2001). Thus, such objection is “tantamount to a complete failure
to object.” See id. Therefore, the final objection is overruled.
IV. Conclusion
For the foregoing reasons, Plaintiff's Objections (Doc. 11) are OVERRULED. The
Court hereby ADOPTS the Order and Report and Recommendation (Doc. 8) and
ORDERS the following:
(1) The Complaint (Doc. 7) is DISMISSED with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b) for failure to state a claim for 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 their
individual capacities. Thus, all claims against John Doe 1, Plaintiff's claim
under Title I of the ADA, and Plaintiff's official capacity claims are hereby
DISMISSED with prejudice.
(2) The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this
Order would not be taken in good faith. Plaintiff is therefore DENIED leave to
appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997).
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT QF ORIO
Ws
By:
MATTHEW W. McFARLAND
UNITED STATES DISTRICT JUDGE