Straughter v. Eddy

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

VALDEZ J. STRAUGHTER,

Case No. 2:23-cv-1268

Plaintiff,

v. Morrison, J.

Bowman, M.J.

DR. ANDREW EDDY, et al.,

Defendants.

REPORT AND RECOMMENDATION

Pursuant to local practice, this prisoner civil rights case has been referred to the

undersigned magistrate judge. On June 30, 2023, the State of Ohio, as an interested

party on behalf of all Defendants,1 moved to dismiss the complaint for failure to state any

claim. (Doc. 11). Plaintiff filed a response in opposition to Defendants’ motion to dismiss,

to which Defendants filed no reply. (Doc. 26). In addition, Plaintiff has moved to dismiss

without prejudice all claims against four individuals (Justus, Hildebrand, Gillespie2 and

Olibode). For the reasons below, Plaintiff’s motion to dismiss should be GRANTED, while

Defendants’ motion to dismiss should be DENIED.

1Under Ohio R.C. § 109.361, the Ohio Attorney General may appear to protect the interest of the State

even if no request for appearance has been made. In this case, all Defendants are state employees and

agents. At the time the motion to dismiss was filed, returns of service had not been completed for all

Defendants, leading the State to file its motion as an “interested party.” ((Doc. 11 at PageID 197). Summons

has since been executed and returned for most Defendants, though summons was returned unexecuted

as to Defendants Gillispie, Hildebrand, and Saul. On August 25, 2023, the five Defendants on whom service

was perfected filed a new motion to dismiss. (Doc. 29). The new motion was filed by the same Assistant

Attorney General and therefore contains several arguments that are entirely duplicative of those presented

in the State’s first motion. However, the new motion also contains several entirely new arguments. Since

the new motion is not yet ripe, the new arguments are not addressed in this Report and Recommendation.

2Plaintiff spells this Defendant’s surname inconsistently. (Compare, e.g., Doc. 20, referring to Defendant

“Gilspie” with Doc. 26, PageID 297, referring to Defendant “Gilispie.”).

I. Plaintiff’s Motion to Dismiss Under Rule 41(a)(2)

Plaintiff’s motion to dismiss all claims without prejudice against “Vicky Justus,

Jenny Hildebrand, Jill Gilspie [sic], Patrick Olibode.” (Doc. 20) falls under Rule 41, Fed.

R. Civ. P. Under Rule 41(a)(2), an action may be dismissed at the plaintiff’s request on

terms that the court considers proper. Plaintiff’s unopposed motion for dismissal of four

Defendants without prejudice should be GRANTED.

II. Defendants’ Motion to Dismiss for Failure to State a Claim

Plaintiff filed a response in opposition to Defendants’ motion to dismiss, to which

Defendants fled no reply.

A. Standard of Review

The standard of review for failure to state a claim under Rule 12(b)(6) is virtually

identical to the standard of review that this Court employed when it screened the

complaint under 28 U.S.C. §§1915(e) and 1915A. See Hill v. Lappin, 630 F.3d 468, 470-

471 (6th Cir. 2010). That said, the frame of reference differs significantly.

Screening under 28 U.S.C. § 1915(e) is extremely liberal. The perspective of the

court, as a neutral arbiter examining the complaint on a superficial level without the benefit

of briefing, differs from that of an opposing party who has an incentive to explore all

possible legal arguments in a subsequent motion to dismiss or motion for judgment on

the pleadings. Necessarily constrained by limitations of time and resources in its

initial sua sponte examination, this Court frequently will permit “further development” of a

weak legal claim by requiring a defendant to file an answer or response. In other words,

even though a Rule 12(b)(6) motion is akin to seeking reconsideration of the Court’s prior

screening order, this Court will on occasion grant a motion to dismiss based upon a well-

supported motion. Nevertheless, the Court cannot grant a motion to dismiss if it requires

the Court to look beyond the allegations of the complaint. And in considering

a Rule 12(b)(6) motion, the Court must “construe the complaint in the light most favorable

to the nonmoving party, accept the well-pled factual allegations as true, and determine

whether the moving party is entitled to judgment as a matter of law.” Commercial Money

Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). Given

screening standards under 28 U.S.C. § 1915(e) that result in the dismissal of most cases

that fail to state any claim, the liberal pleading standards of Rule 8, and the

standard of review that applies under Rule 12(b)(6), it is more common for pro se prisoner

civil rights cases to be disposed of following discovery, on motions for summary judgment,

than under Rule 12(b)(6).

B. Allegations Relevant to Plaintiff’s Eighth Amendment Claim

Because Rule 12(b)(6) limits review to the pleadings, the Court first reviews the

allegations in the complaint before turning to Defendants’ arguments. Plaintiff complains

of inadequate medical treatment following his transfer to the London Correctional

Institution (LoCI) on June 29, 2022. (Doc. 6, ¶31). After screening under 28 U.S.C.

§1915A(a) and 28 U.S.C. §1915(e)(2), the Court concluded that some claims should be

dismissed but that Plaintiff’s Eighth Amendment claim for deliberate indifference to a

serious medical need should be permitted to proceed. (Doc. 7, adopted without objections

on July 10, 2023 (Doc. 13)). In light of the recommended dismissal of four individuals, the

remainder of this Report and Recommendation (“R&R”) limits discussion to the

allegations against the four remaining Defendants: Dr. Andrew Eddy, identified as the

Chief Medical Officer and Member of the Collegiate Review Board (the policymaking

authority for ODRC); Karen Stanforth, the Chief Medical Inspector; Dr. Kenneth Saul, the

Chief Medical Officer, and Robin Murphy, R.N., Health Care Administrator. Plaintiff has

sued Defendants in both their individual and official capacities, seeking monetary

damages against them in their individual capacities, as well as declaratory and injunctive

relief. (Doc. 7, PageID 162, 168).

Plaintiff generally alleges that he suffers Type II diabetes and a “flatfoot” condition

or “fallen arches” for which he seeks a referral to podiatry and specialty shoes. Plaintiff

alleges he has been denied “proper foot orthotic/orthopedic footwear” for “about 9 years

now.” (Id. ¶¶26-27). Plaintiff alleges that his medical condition(s) and lack of adequate

treatment causes chronic and debilitating pain, plantar fasciitis, degenerative

osteoarthritis in the foot and ankle at the first metatarsophalangeal joint, stiffness, and

lack of endurance when walking, running or standing for extended periods or when

climbing stairs or up and down bunkbeds, Achilles tendonitis, right heel spur, a burning

sensation, limited or loss of mobility in affected muscles and tendons, arthritic bunion

pain, inability to participate in recreation activities, and an accelerated rate of decline in

foot muscles. (Doc. 6, ¶ 26). He alleges that after x-rays revealed a heel spur, he was

referred for a podiatry consult,3 but that Defendant Eddy denied that consult based on his

lack of a foot ulcer. (Id., ¶¶ 35-37). Prior to 2014, he alleges that ODRC policy permitted

a podiatry referral for prescription footwear if “a significant deformity of the foot is present,”

but that current policy permits referral only if the inmate has an ulcer. (Id., ¶48). Plaintiff

alleges that Defendants Eddy, Stanforth, Murphy, and Saul have all exhibited deliberate

3Plaintiff alleges that the ODRC eliminated the existence of a podiatry Clinic between 2014 and 2016 as a

cost-savings measure. (Id., ¶62).

indifference by applying the current policy and denying previously prescribed treatment.

(Id., ¶¶49-50).

C. Defendants’ Motion to Dismiss

1. Plaintiff’s Deliberate Indifference Claim

Plaintiff's deliberate indifference claim arises under the Eighth Amendment, which

“forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ on an inmate by

acting with ‘deliberate indifference’ toward [his] serious medical needs.” Blackmore v.

Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 429

U.S. 97, 104 (1976)). Such a claim requires a plaintiff to prove both objective and

subjective components. Specifically, a plaintiff must put forth evidence to show a

“sufficiently serious” medical need, and that the defendants acted with “a sufficiently

culpable state of mind in denying medical care.” Blackmore, 390 F.3d at 895. Further,

where a prisoner alleges only that the medical care he received was inadequate, “federal

courts are generally reluctant to second guess medical judgments.” Alspaugh v.

McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake v. Lucas, 537 F.2d 857,

860 n.5 (6th Cir. 1976)). Medical treatment must be “so woefully inadequate as to amount

to no treatment at all,” to be considered deliberately indifferent. Id.

Defendants’ motion to dismiss is based partly on the argument that Plaintiff’s

complaint does not contain sufficient allegations to support either the objective or

subjective components of his claim. The undersigned reiterates that this R&R considers

the narrow scope of Rule 12(b)(6) and expresses no opinion on the merits of Plaintiff’s

Eighth Amendment claim. (See also Doc. 7, PageID 163). Perhaps Defendants will prevail

based on a developed record, but this Court previously determined on initial screening

that Plaintiff’s allegations are sufficient to state a plausible claim. Reconsidering the same

issue in light of Defendants’ motion, the undersigned finds no basis for disturbing the

Court’s prior conclusion.

Defendants first argue that Plaintiff’s foot condition is not sufficiently serious to

warrant Eighth Amendment protection and that (at most) Plaintiff’s claim rests on mere

disagreement with the treatment he has been provided. But the State’s arguments rely

almost exclusively on cases decided under the very different Rule 56 standard, after

development of the record. See, e.g., Rhinehart v. Scott, 894 F.3d 721 (6th Cir. 2018);

Sanders v. Prison Health Services, Inc., Case No. 2:10-CV-12846, 2013 WL 878747, at

*6 (E.D. Mich. Jan. 29, 2013) (granting summary judgment where plaintiff was issued arch

supports and provided regular treatment for his flat feet, where he failed to point to

evidence that demonstrated deliberate indifference despite his disagreement with the

course of treatment). Defendants also cite to case law from New York, North Carolina,

and Illinois that is easily distinguished based on the developed record. See e.g., Veloz v.

New York, 35 F. Supp. 2d 305 (S.D.N.Y. 1999) (summary judgment granted on claims of

inadequate medical care based on dissatisfaction with foot surgery, where record

reflected no more than medical negligence); see also Abney v. McGinnis, No. 01 CIV.

8444 (SAS), 2007 U.S. Dist. LEXIS 23180, 2007 WL 844675, at *1-3 (S.D.N.Y. Mar. 16,

2007) (granting summary judgment where plaintiff could not show a “sufficiently serious”

foot condition because the evidence showed he played basketball and lifted weights, and

defendants provided special shoes and refitted and reformed the orthoses).

In addition to being decided after development of the factual record under Rule 56

rather than Rule 12(b)(6), most of the cited cases are unpublished, and many involve

entirely different foot conditions or injuries. In fact, the State cites to only one published

case decided under the Rule 12(b)(6) pleading standard in which a North Carolina district

court “suggests” that flat feet are not a “serious medical condition.” See Johnson v.

Medford, 208 F. Supp. 2d 590, 592 (W.D.N.C. 2002), aff’d, 37 Fed. Appx. 622 (4th Cir.

2002) (dismissal upon initial review of prisoner civil rights complaint, reasoning without

citation that the health problem described as “‘fallen arches’ and ‘flat feet,’” does not

“suggest a serious medical condition”). In contrast, the State concedes that “the Sixth

Circuit has not assessed an instance of flat feet under the objectively serious standard.”

(Doc. 11 at n.2, PageID 204).4

Indeed, Sixth Circuit authority does not support dismissal when a plaintiff alleges

that the allegedly inadequate medical treatment has resulted in other injuries that include

unnecessary pain. As the Sixth Circuit has explained:

Despite the reluctance we expressed in Alspaugh to not second guess

medical judgments, we have distinguished inadequate treatment cases

from cases alleging intentional infliction of unnecessary pain. See

Richmond v. Huq, 885 F.3d 928, 944-45 (6th Cir. 2018) (en banc). We have

long held that “a prisoner who suffers pain needlessly when relief is readily

available has a cause of action against those whose deliberate indifference

is the cause of his suffering.” Boretti v. Wiscomb, 930 F.2d 1150, 1154-55

(6th Cir. 1991). Further, both insufficient treatment and a delay in giving

treatment may violate the Eighth Amendment.

4It is clear to the undersigned that there is also no consensus outside the Sixth Circuit that allegations of

chronic pain and other injuries from untreated flat feet are insufficient to state an Eighth Amendment

claim. See, e.g., Paul v. Bailey, No. 09 Civ. 5784, 2013 WL 2896990, *3 (S.D.N.Y. June 13, 2013) (denying

motion to dismiss, reasoning that “[w]hile Plaintiff’s condition [flat feet] was not life-threatening, it can be

appropriately described as chronic, and is sufficiently serious to constitute a serious medical need for the

purposes of establishing an Eighth Amendment claim arising out of inadequate medical care.”); see also

McCutcheon v. Sood, No. 99 C 932, 2000 WL 528481, at *5 (N.D. Ill. Apr. 26, 2000) (granting summary

judgment on subjective component after assuming without deciding that “that McCutcheon's flat feet or

fallen arches could significantly affect his daily activities or lead to chronic and substantial pain” and

therefore satisfy the “serious medical need” standard).

Briggs v. Westcomb, 801 Fed. Appx. 956, 959-60 (6th Cir. 2020). In the absence of

contrary controlling authority, Plaintiff’s allegations of pain and other injuries resulting from

his untreated flat feet are enough, at the pleading stage, to satisfy the objective

component of his claim.

Defendants next argue that Plaintiff has inadequately alleged the subjective

component of his claim in part because he has failed to sufficiently allege their personal

involvement. The subjective component of an Eighth Amendment claim is satisfied if the

plaintiff alleges facts that “show that the official being sued subjectively perceived facts

from which to infer substantial risk to the prisoner, that he did in fact draw the inference,

and that he then disregarded that risk.” Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir.

2005) (internal quotation and citation omitted). Defendants point out that to the extent that

Plaintiff seeks injunctive relief against them in their official capacities, Plaintiff also must

show that each Defendant is “actively involved” with the challenged conduct. See Ex parte

Young, 209 U.S. 123, 155-56 (1908). The State argues that the complaint “does nothing

more than generally allege that a collection of assorted prison officials failed to properly

treat Plaintiff’s flat feet by denying him specialty footwear.” (Doc. 11 at PageID 202). For

example, with respect to Defendants Stanforth and Murphy, Plaintiff alleges that Stanforth

is responsible for the disposition of medically related appeals, and that Murphy supervises

the duties of medical staff and the medical care provided to LoCI inmates. (See Doc. 6,

¶10, ¶ 15 at PageID 135-136).5

Re-examining the Court’s determination on initial screening that Plaintiff has

sufficiently pleaded the subjective element of his claim, the undersigned recommends

5The undersigned finds no need to address arguments concerning Hildebrand, Justus, Gillispie, and

Olibode in light of the recommended dismissal of those Defendants under Rule 41(a)(2).

that Defendants’ current motion be denied. In the screening R&R adopted by the Court,

the undersigned previously pointed out that Plaintiff also alleges that all Defendants

interpreted and acted on the current policy, and “for years knew about Straughter’s

medical need for custom orthopedic footwear, lower bunk restriction based on his medical

records, policies, and treatment plans by Defendant’s own experts.” (Doc. 6, ¶46). He

further alleges that Defendants “continually advise plaintiff that he can purchase insoles

and over-the-counter medications to treat his foot condition when they are aware that

these alternative[] treatments were essentially non-effective in the past.” (Id., ¶ 63). He

alleges that Eddy and Stanforth have policy-making duties on the Collegial Review Board,

raising the inference that those two Defendants are actively involved in creating and

enforcing the policy that allegedly caused his injuries. (See also id., ¶68, alleging

statement by Defendant Stanforth that unless a prisoner’s condition is life-threatening,

“no outside medical care will be rendered for that prisoner.”; id., ¶ 70, alleging that the

“Collegial Review Board under Defendants Eddy and Stanforth frequently denies” medical

recommendations). The complaint alleges that Eddy and Stanforth had personal

knowledge of “the risks of [Plaintiff] not having the proper orthopedic footwear… and

denied and intentionally interfered and interrupted a previously prescribed treatment

plan.” (Id. ¶71). And Plaintiff alleges that all four Defendants “acted with deliberate

indifference” to Plaintiff’s “known and recognized serious medical needs,” by interpreting

his previously prescribed treatment including orthopedic footwear based on the current

medical policies (Id. ¶¶ 75-76).

Mindful of the special liberality with which this Court must construe a pro se

complaint at the pleading stage and the Rule 12(b)(6) standard of review, the undersigned

again finds these allegations sufficient to state a plausible Eighth Amendment claim

against the four remaining Defendants.

2. Alternative Grounds for Dismissing Extraneous Claims

The State presents several alternative arguments that the undersigned rejects as

irrelevant or unpersuasive. For example, the State argues that dismissal is required to the

extent that Plaintiff tries to raise claims on behalf of other inmates. (Doc. 11 at PageID

205). But the Court previously screened out those claims on initial review. (See Doc. 7 at

PageID 165). The State suggests that the Eleventh Amendment bars Plaintiff’s suit for

monetary damages against any state officials in their official capacity. (Id.) This Court has

previously held the same in its prior order in this case, meaning that no such claims are

pending that require dismissal. (Doc. 11 at PageID 167). Defendants argue that

allegations based solely on a violation of state policy fail to state a constitutional claim.

(Doc. 11 at PageID 205). In a similar vein, they argue that references to the Americans

with Disabilities Act (ADA) and Rehabilitation Act (“RA”) “must fail because [they]

amount[] to nothing more than a challenge to the allegedly inadequate medical care

Plaintiff received.” (Doc. 11 at PageID 206). Again, this Court previously permitted only

Plaintiff’s Eighth Amendment claim to advance beyond initial screening.

The State also argues that Plaintiff’s claims for prospective relief should be

dismissed because the Constitution does not guarantee treatment outcomes. But the

issue of what relief (if any) to which Plaintiff is entitled if he proves his claim must await

further development.

III. Conclusion and Recommendation

For the reasons discussed above, IT IS RECOMMENDED THAT:

1. Plaintiff’s motion to dismiss Defendants Justus, Hildebrand, Gillispie, and

Olibode without prejudice (Doc. 20) be GRANTED;

2. Defendants’ motion to dismiss (Doc. 11) be DENIED.

s/Stephanie K. Bowman ____

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

VALDEZ J. STRAUGHTER,

Case No. 2:23-cv-1268

Plaintiff,

v. Morrison, J.

Bowman, M.J.

DR. ANDREW EDDY, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections must specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party must respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).