Merrick v. Warden Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRET S. MERRICK,

Plaintiff,

Civil Action 2:21-cv-4803

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Elizabeth P. Deavers

WARDEN NOBLE CORRECTIONAL

INSTITUTION, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Undersigned for an initial screen of Plaintiff’s Amended

Complaint, ECF No. 12, under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to

recommend dismissal of Plaintiff’s Amended Complaint, or any portion of it which 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. § 1915(e)(2); see also McGore v.

Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen of the

Amended Complaint, for the reasons that follow, it is RECOMMENDED that Plaintiff be

PERMITTED to pursue claims against Defendants Dr. Tina Capers and Mrs. Wiley, but that the

remainder of Plaintiffs’ claims be DISMISSED in their entirety.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

1 Formerly 28 U.S.C. § 1915(d).

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of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

II.

Plaintiff, proceeding without the assistance of counsel, filed this action on September 24,

2021. (ECF No. 1.) After granting Plaintiff leave to proceed in forma pauperis, the Undersigned

performed an initial screen under 28 U.S.C. § 1915(e)(2) and recommended dismissal of

Plaintiff’s Complaint for four reasons: (1) failure to specifically reference or identify any of the

Defendants in his allegations; (2) failure to properly allege that Defendants acted with deliberate

indifference towards his serious medical needs; (3) failure to seek appropriate relief; and (4)

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mootness of Plaintiff’s injunctive relief claim following his transfer from Noble Correctional

Institution (“NCI”) to Chillicothe Correctional Institution (“CCI”). (See ECF No. 6 (the “Initial

Screen”).) Plaintiff then timely filed objections to the Initial Screen, so the Undersigned

withdrew the Initial Screen and directed Plaintiff to file an Amended Complaint. (ECF No. 11.)

Plaintiff timely filed the Amended Complaint on January 2, 2024. (ECF No. 12.)

In the Amended Complaint, Plaintiff again asserts a medical deliberate indifference

claim, the factual background for which the Undersigned set forth in the Initial Screen. (ECF

No. 6.)1 Now, however, Plaintiff names seven (7) Defendants: (1) the Warden of NCI, Jay

Forshey; (2) Dr. Tina Capers; (3) “Dr. Eddy”; (4) the Office of Correctional Health Care

(“CHC”); (5) a Corrections Officer named Mrs. Wiley; (6) NCI; and (7) the Ohio Department of

Rehabilitation and Corrections (the “ODRC”). (See ECF No. 12.) Unlike Plaintiff’s original

Complaint (as the Undersigned noted in the Initial Screen), Plaintiff’s Amended Complaint

contains allegations against each of these Defendants. (See generally id.) Thus, Plaintiff has

arguably cured the first deficiency the Undersigned identified in the Initial Screen. (See ECF

No. 6 at PAGEID # 69.)

Merely having allegations, however, does not necessarily mean that Plaintiff’s Amended

Complaint will survive screening. For this, and to see if Plaintiff has cured the second deficiency

identified in the Initial Screen (i.e., properly alleging that Defendants acted with deliberate

indifference towards his serious medical needs), the Undersigned must evaluate the sufficiency

of Plaintiff’s allegations against each Defendant. And upon further review, for the following

1 The Undersigned incorporates the factual background set forth in the Initial Screen as if fully

set forth herein. (See ECF No. 6 at PAGEID ## 67-68.)

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reasons, the Undersigned finds that Plaintiff has only stated potentially viable claims against two

Defendants: Dr. Tina Capers and the Corrections Officer, Mrs. Wiley.

A. Dr. Tina Capers.

The primary target of Plaintiff’s allegations appears to be Dr. Tina Capers, the “medical

professional whom [sic] was responsible for treating [Plaintiff’s] condition.” (ECF No. 12 at

PAGEID # 114.) According to the Amended Complaint,2 Dr. Capers was aware of Plaintiff’s

difficulty swallowing food without choking or vomiting, but “refuse[d] to listen to the details and

concerns of Plaintiff’s issues,” and ultimately refused to treat Plaintiff’s (then-undiagnosed)

Achalasia because it “would cost too much.” (Id. (citing ECF No. 1-1 at PAGEID ## 21-22).)

Plaintiff also alleges that after filing the subject lawsuit, he had a follow-up appointment

with Dr. Capers, and that upon learning that Plaintiff had named her as a Defendant, “as a form

of retaliation, Dr. Capers ordered [Plaintiff] to get put into medical isolation, confined to a cell

separated from the rest of the population without freedom of movement for nearly a week.” (Id.

at PAGEID # 115.) Plaintiff further alleges that with these actions, “Dr. Capers acted within

[her] individual capacity by making decisions about [Plaintiff’s] medical care outside of her

official capacity.” (Id. at PAGEID # 116.)

With these allegations, Plaintiff has alleged potentially viable claims for medical

deliberate indifference and retaliation. First, as set forth in the Initial Screen, a claim for medical

2 Plaintiff attached his grievance correspondence with NCI personnel to the Complaint. (See

ECF No. 1-1 at PAGEID ## 19-22.) Plaintiff did not attach the correspondence to the Amended

Complaint, but the Undersigned liberally construes it as attached to the Amended Complaint.

Brown v. Howell, No. 2:21-CV-128, 2022 WL 2114945, at *3 (W.D. Mich. June 13, 2022) (“The

Sixth Circuit has concluded that ‘[i]f . . . the party submitting the pleading clearly intended the

latter pleading to supplement, rather than supersede, the original pleading, some or all of the

original pleading can be incorporated in the amended pleading.’ Accordingly, the Court will

liberally construe Plaintiff's amended complaint to incorporate his initial complaint with

exhibits.”) (quoting Clark v. Johnston, 413 F. App'x 804, 811–12 (6th Cir. 2011)).

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deliberate indifference “has both objective and subjective components.” Alspaugh v. McConnell,

643 F.3d 162, 169 (6th Cir. 2011). The United States Court of Appeals for the Sixth Circuit has

explained as follows:

The objective component mandates a sufficiently serious medical need. [Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component

regards prison officials’ state of mind. Id. Deliberate indifference “entails

something more than mere negligence, but can be satisfied by something less than

acts or omissions for the very purpose of causing harm or with knowledge that harm

will result.” Id. at 895–96 (internal quotation marks and citations omitted). The

prison official must “be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference.”

Id. at 896 (internal quotation marks and citation omitted).

Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). Where the risk of serious harm is

obvious, it can be inferred that the defendants had knowledge of the risk. Farmer v. Brennan,

511 U.S. 825, 842 (1994). The Sixth Circuit has also noted that in the context of deliberate

indifference claims:

[W]e distinguish between cases where the complaint alleges a complete denial of

medical care and those cases where the claim is that a prisoner received inadequate

medical treatment. Where a prisoner alleges only that the medical care he received

was inadequate, federal courts are generally reluctant to second guess medical

judgments. However, it is possible for medical treatment to be so woefully

inadequate as to amount to no treatment at all.

Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). Along similar lines,

“[o]rdinary medical malpractice does not satisfy the subjective component.” Grose v. Corr.

Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir. 2010). Rather, the Sixth Circuit considers the

subjective component to be satisfied where defendants recklessly disregard a substantial risk to a

plaintiff’s health. Parsons v. Caruso, 491 F. App’x 597, 603 (6th Cir. 2012). Furthermore, “a

difference of opinion between [a prisoner] and the prison health care providers and a dispute

over the adequacy of [a prisoner’s] treatment . . . does not amount to an Eighth Amendment

claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002) (citing cases).

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In the Initial Screen, the Undersigned found that Plaintiff had arguably satisfied the

objective component of a medical deliberate indifference claim by alleging the symptoms of

Acahalasia, noting that courts “have looked favorably on such allegations.” (ECF No. 6 at

PAGEID # 71 (citations omitted).) This remains true. The Undersigned also previously found,

however, that Plaintiff had not satisfied the subjective component of a medical deliberate

indifference claim because he had not alleged that any Defendant had the “sufficiently culpable

state of mind.” (Id. (citations omitted).) This no longer remains true, as Plaintiff now alleges

that Dr. Capers knew of Plaintiff’s sufficiently serious medical need and improperly chose not to

treat it for economic – not medical – reasons. (ECF No. 12 at PAGEID # 114.) This allegation

satisfies, for purposes of the initial screen, the subjective component of Plaintiff’s medical

deliberate indifference claim.

Regarding Plaintiff’s retaliation claim, “[p]risoners have a First Amendment right to file

grievances and access the courts without suffering retaliation for so doing.” Rodgers v. Hawley,

14 F. App'x 403, 409–10 (6th Cir. 2001). A retaliation claim entails three elements: (1) the

plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that

would deter a person of ordinary firmness from continuing to engage in that conduct; and (3)

there is a causal connection between elements one and two—that is, the adverse action was

motivated at least in part by the plaintiff's protected conduct. Thaddeus–X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999). The first of these elements is satisfied here, as filing a lawsuit against a

prison official clearly qualifies as protected conduct. Bell v. Johnson, 308 F.3d 594, 607 (6th

Cir. 2002) (“[P]rotected conduct, for the purposes of a First Amendment retaliation claim,

encompasses a prisoner’s efforts to access the courts in direct appeals, habeas corpus actions, and

civil rights claims.”).

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As to the second element, Plaintiff alleges that “Dr. Capers ordered [Plaintiff] to get put

into medical isolation, confined to a cell separated from the rest of the population without

freedom of movement for nearly a week.” (ECF No. 12 at PAGEID # 115.) This constitutes an

adverse action for purposes of Plaintiff’s claim. Treesh v. Bobb-Itt, No. 2:10-CV-211, 2011 WL

3837099, at *7 (S.D. Ohio Aug. 29, 2011) (“As to the second element, placing an inmate in

isolation for any length of time constitutes an adverse action.”) (citing Hill v. Lappin, 630 F.3d

468, 474 (6th Cir. 2010). Finally, Plaintiff alleges that Dr. Capers acted immediately after

learning that she was named in this lawsuit, so the Undersigned finds that Plaintiff has

sufficiently pled that a causal connection existed between Plaintiff filing the subject lawsuit and

the allegedly adverse action. Bates v. Dyer, No. 1:23-CV-16, 2023 WL 4073577, at *4 (S.D.

Ohio June 12, 2023) (“The Sixth Circuit has held that temporal proximity between protected

conduct and retaliatory acts may create an inference of retaliatory motive.”) (citing cases).

Accordingly, it is RECOMMENDED that the Plaintiff be PERMITTED to proceed on his

claims against Dr. Capers.

B. Mrs. Wiley.

The Amended Complaint also asserts a retaliation claim against a new Defendant, a

Corrections Officer at NCI identified as “Mrs. Wiley.” (ECF No. 12 at PAGEID ## 115, 117.)

Specifically, Plaintiff alleges that “[t]hrough the months” after he filed the subject lawsuit, from

September 24, 2021 until “as late as March 2022,” Mrs. Wiley, “who is not a medical

professional, made Food Services remove [Plaintiff’s] medical Therapeutic Diet without cause

and harassed [Plaintiff], creating further issues with his medical situation” because “[d]ue to

malnutrition, on several occasions, [Plaintiff] experienced light-headedness and dizziness that

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caused him to pass out and hit his head on different objects.” (Id. at PAGEID # 115.) Plaintiff

alleges that Mrs. Wiley did so in her individual capacity. (Id. at PAGEID # 117.)

Liberally construing Plaintiff’s Amended Complaint, the Court finds that these retaliation

allegations also are sufficient for purposes of surviving the initial screen.3 First, again, Plaintiff’s

lawsuit qualifies as protected conduct. Bell, 308 F.3d at 607. Second, Plaintiff’s allegation that

Mrs. Wiley withheld Plaintiff’s medical diet without cause also has been found to constitute an

adverse action. Jackson v. Gordon, No. 3:03-CV-1725, 2014 WL 690643, at *7 (M.D. Pa. Feb.

24, 2014) (“The suspension of [Plaintiff’s] non-standard therapeutic diet arguably constitutes

adverse action.”) (citing Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (finding alleged

denial of high fiber diet and delaying medical appointment sufficient to support retaliation

claim); Davidson v. Chestnut, 193 F.3d 144, 149 (2d Cir.1999) (observing that denial of kosher

diet is an adverse action that may support retaliation claim)); see also, e.g., Quezada v. Roy, No.

14-cv-4056, 2017 WL 6887793, at *10 (S.D.N.Y. Dec. 14, 2017) (finding, at summary

judgment, that “removing Plaintiff from his therapeutic diet plan constitutes an adverse action for

purposes of a First Amendment retaliation claim”); Davis, 320 F.3d at 353 (finding, at pleading

stage, that the plaintiff adequately alleged adverse action based on deprivation of “high fiber

diet”). Finally, liberally construing the Amended Complaint, Plaintiff has established a timeline

from which the Undersigned can plausibly infer that a causal connection existed between

Plaintiff’s filing of the subject lawsuit and Mrs. Wiley’s allegedly adverse action, especially

given Plaintiff’s allegation that Mrs. Wiley is not a medical professional (and therefore would

not have been making a medical judgment about Plaintiff’s diet). Bates, 2023 WL 4073577, at

3 To be clear, the Undersigned takes no position as to the merits of any of Plaintiff’s claims.

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*4. Accordingly, it is RECOMMENDED that the Plaintiff be PERMITTED to proceed on his

claims against Mrs. Wiley.

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C. Other Defendants.

1. Other Individual Defendants.

Plaintiff also asserts claims against two other individual Defendants: Jay Forshey, the

Warden of NCI; and Dr. Eddy, the “Collegial Review Head Administrator” who “was the

Medical Director responsible for overseeing this medical situation.” (ECF No. 12.) Specifically,

Plaintiff alleges that Warden Forshey “side[d] with Dr. Capers in not treating [Plaintiff],

contributing to deliberate indifference,” and that “[a]s Dr. Capers’ supervisor, Dr. Eddy acted in

an individual capacity with medical deliberate indifference [by] allowing Dr. Capers to act with

such conduct and not assuring [Plaintiff] received proper medical care.” (Id. at PAGEID ## 116-

117.) But these conclusory allegations fail to state claims against Warden Forshey or Dr. Eddy,

because “to hold a supervisor liable . . . a plaintiff ‘must show that the official at least implicitly

authorized, approved, or knowingly acquiesced in the unconstitutional conduct[.]’” Mann v.

Ohio Dep't of Rehab. & Corr., No. 2:18-CV-01565, 2019 WL 2617471, at *5 (S.D. Ohio June

26, 2019), report and recommendation adopted sub nom. Mann v. Ohio Dep't of

Rehabilitationand Corr., No. 2:18-CV-1565, 2019 WL 3334328 (S.D. Ohio July 24, 2019)

(quoting Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009)).

But the Amended Complaint fails to include any such specific allegations to this end.

Instead, Plaintiff merely alleges that Warden Forshey “side[d] with Dr. Capers” and that Dr.

Eddy “allow[ed] Dr. Capers to act.” (ECF No. 12 at PAGEID ## 116-117.) These conclusory

allegations are insufficient. Harden-Bey v. Rutter, 524 F.3d 789, 796 (6th Cir. 2008) (“[I]n the

context of a civil rights claim, . . . conclusory allegations of unconstitutional conduct without

specific factual allegations fail to state a claim.”) (citing Lillard v. Shelby County Bd. of Educ.,76

F.3d 716, 726 (6th Cir. 1987)); Nafziger v. McDermott Int'l, Inc., 467 F.3d 514, 520 (6th Cir.

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2006) (observing that “the court is not required to create a claim for the plaintiff[ ]”) (internal

quotation marks and citation omitted); Cline v. Rogers, 87 F.3d 176, 184 (6th Cir. 1996)

(instructing courts not to suppose a plaintiff would be able to show facts not alleged or that a

defendant has violated the law in ways not alleged). Accordingly, it is RECOMMENDED that

the Court DISMISS Plaintiff’s claims against Defendants Warden Forshey and Dr. Eddy.

2. Other Defendants.

Finally, Plaintiff asserts the following allegations against Defendants OCHC, NCI, and

the ODRC:

 “[T]he OCHC, through some custom or standard, acted with medical deliberate

indifference by not assuring [Plaintiff] received proper medical care and for allowing Dr. Capers

to violate their own rules or practices”;

 “[NCI] acted with deliberate indifference by not assuring [Plaintiff] received

proper medical care and for allowing Dr. Capers, C/O Mrs. Wiley, and Warden Forshey to

commit such conduct through some custom or standard”; and

 “The ODRC acted with deliberate indifference by not assuring [Plaintiff] received

proper medical care and for allowing Dr. Capers, Dr. Eddy, the OCHC, C/O Mrs. Wiley, Warden

Forshey, and NCI to commit such conduct through some custom or standard.”

(ECF No. 12 at PAGEID # 117.) Of note, Plaintiff does not include any other allegations against

these Defendants.

These claims are insufficient. First, Plaintiff’s allegations are again just conclusory.

Plaintiff summarily alleges that these Defendants “acted with medical deliberate indifference by

not assuring [Plaintiff] received proper medical care,” providing no specific allegations to

support these claims. (Id.) Further, to the extent Plaintiff believes that various rules, practices,

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customs, or standards were violated, Plaintiff fails to identify them (let alone describe how they

were violated). (Id.) Plaintiff has therefore failed to establish how these three Defendants could

be liable. Lyons v. Heyd, No. 1:12-CV-324, 2015 WL 892375, at *4 (S.D. Ohio Mar. 3, 2015)

(“[T]he plaintiff must show] that the unconstitutional policy or custom existed, that the policy or

custom was connected to the governmental entity, and that the policy or custom caused the

constitutional violation.”) (internal quotation marks and citations omitted). Further, to the extent

Plaintiff claims that these entities are culpable for merely “allow[ing]” the individual Defendants

to act how they did, those claims fail. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002)

(“Supervisory liability under § 1983 does not attach when it is premised on a mere failure to act;

it must be based on active unconstitutional behavior.”) (internal quotation marks and citations

omitted). Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims

against Defendants OCHC, NCI, and the ODRC in their entirety.

D. Relief Sought.

In the Initial Screen, the Court noted that “even if Plaintiff had stated a claim for medical

deliberate indifference claim, Plaintiff has failed to seek appropriate relief” because “to the

extent Plaintiff’s claims are against Defendants in their official capacities, Plaintiff is not

permitted to recover compensatory or punitive damages.” (ECF No. 6 at PAGEID # 72 (citation

omitted).) While this still rings true, it appears Plaintiff has sought appropriate compensatory

damages because his claims against Defendants Dr. Capers and Mrs. Wiley are only in their

individual capacity. (See ECF No. 12.) On a similar note, the Court also previously noted that

“Plaintiff’s transfer from NCI to CCI renders his claims for injunctive relief moot.” (ECF No. 6

at PAGEID # 72 (citation omitted).) This also appears to no longer be an issue, however, as

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Plaintiff does not seek any injunctive relief against Defendants Dr. Capers or Mrs. Wiley. (See

ECF No. 12.)

Separately, however, Plaintiff also requests that the Court issue some rather extraordinary

injunctive relief:

In addition, enforce statutory provision to empower a state medical examining

board to temporarily suspend the Physicians’ Licenses to practice medicine until a

Formal Adjudicatory Procedure Hearing can be conducted to officially revoke or

terminate Physicians’ Licenses.

As well as, empower the Ohio Peace Officer Training Commission to temporarily

suspend the correctional officer’s Ohio Peace Officer Training Certificate until a

Notice of Charges and Intent to Suspend or Revoke License may be issued by the

Review Commission so that no further harm can be done to any other persons.

(ECF No. 12 at PAGEID # 118.) The Court does not, however, have the authority to either: (a)

force a state medical examining board to temporarily suspend licenses to practice medicine; or

(b) suspend prison employees. See Ohio Rev. Code § 4731.22 (Establishing procedures for

medical disciplinary actions); Covington v. Hamblen Cnty. Jail, No. 2:20-CV-104-TAV-CRW,

2020 WL 3273026, at *3 (E.D. Tenn. June 17, 2020) (“[T]he Court does not make decisions

regarding the employment of Defendants, as such action would “unnecessarily intrude[ ] on [the

prison's] operations” and would constitute “an inappropriate use of the court's equity powers.”)

(quoting LaMarca v. Turner, 995 F.2d 1526, 1543 (11th Cir. 1993) (citations omitted)).

Accordingly, these requests for injunctive relief are improper.

III.

For all of these reasons, it is RECOMMENDED that Plaintiff be PERMITTED to

pursue his claims against Defendants Dr. Tina Capers and Mrs. Wiley, but that the remainder of

Plaintiffs’ claims be DISMISSED in their entirety pursuant to 28 U.S.C. § 1915(e)(2) for failure

to state a claim for which relief can be granted.

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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 of by the District Judge

and waiver of the right to appeal the judgment of the District Court. 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)).

Date: March 18, 2024 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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