Smallwood v. Highland County Sheriff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

KYLE JOSHUA SMALLWOOD, : Case No. 1:24-cv-76

:

Plaintiff, :

: Judge Michael R. Barrett

vs. :

Magistrate Judge Stephanie K. Bowman

:

ANNETTE CHAMBERS SMITH, et. al., :

:

Defendants. :

:

REPORT AND RECOMMENDATIONS

Plaintiff Kyle Joshua Smallwood (“Plaintiff”), an inmate at Chillicothe Correctional

Institution (“CCI”), proceeding without the assistance of counsel, filed a complaint under 42

U.S.C. § 1983 (the “Complaint”) on January 23, 2024, in the Court of Common Pleas, Highland

County, Ohio. (Docs. 1-1, 2).1 The case was removed to this Court on February 20, 2024, by

Defendants Highland County Sheriff, J.D. Adams, Steve Alexander, and Devan Goens after an

answer was filed. See (Doc. 1 and attachments). The filing fee has been paid and removal appears

appropriate.2 See (Text Doc. 1). The matter is currently before the undersigned Magistrate Judge

1 The state court complaint, answer to the complaint, and other documents pertinent to removal were filed as

attachments in docket entry 1. See (Doc. 1 and attachments). The complaint and answer were then refiled as docket

entries 2 and 3 by the Clerk’s Office of this Court. See (Docs. 2, 3). For ease of reference throughout this report and

recommendations this Court shall refer to the complaint at docket entry 2 (the “Complaint”), and the answer at docket

entry 3 (the “Answer”) as the operative pleadings.

2 All defendants who were served in the state court proceeding, as well as defendant Adena Health Center Urgent

Care, which was not served, consented to removal. See (Doc. 1 at PageID 2). The Court notes that to the extent

defendant filed an answer in state court prior to removing the action, courts in this circuit have generally found that

“the filing of an answer in state court does not render removal improper.” See, e.g., Harrison v. Diamond Pharmacy

Servs., No. 4:21CV-00063, 2022 WL 566787, at *3 (W.D. Ky. Feb. 24, 2022); Louis Trauth Dairy LLC v. The Risers

Corp., No. C2-02-935, 2002 WL 31951268, at *2 (S.D. Ohio Dec. 10, 2002).

to conduct the initial screen of Plaintiff’s Complaint and Supplement as required by law.3 28

U.S.C. § 1915A(a).

For the reasons that follow, the Court RECOMMENDS that Defendant the Highland

County Sheriff’s Department be DISMISSED from this proceeding with prejudice as improper

party. The Court further RECOMMENDS that all claims by which Plaintiff seeks release from

incarceration be DISMISSED with prejudice as non-cognizable. Further, the Court

RECOMMENDS that Plaintiff’s Fourth Amendment excessive force claim against defendants

Adams, Alexander, and Goens be allowed to PROCEED. Finally, the Court RECOMMENDS

that all remaining claims against all remaining defendants be DISMISSED without prejudice for

the reasons set forth herein.

I. FACTUAL BACKGROUND

Plaintiff, an inmate at CCI filed this action under 42 U.S.C. § 1983, naming Highland

County Sheriff’s Department Deputies J.D. Adams (“Adams”), Steve Alexander (“Alexander”),

and B. Goens (“Goens”), Deputy Sergeants Carroll (“Carroll”) and Kuhn (“Kuhn”) (collectively

the “Officer Defendants”), the Highland County Sherriff’s Department (“Highland County

Sheriff”), and Adena Health Center Urgent Care (“Adena Health”) as defendants. (Doc. 2 at

PageID 23).

Plaintiff alleges that on February 8, 2022, while being arrested for a probation violation,

Highland County Deputies Adams, Alexander, and Goens struck him repeatedly in his back with

their knees “without justification,” even though Plaintiff was lying face down on the ground in

front of a police cruiser, “offering no resistance.” (Id. at PageID 24–25). As a result of the

3 The filing of defendants’ answer does not preclude the need for a screen. See, e.g., Sanders v. Ocean Cty. Bd. of

Freeholders, No. CV165380, 2016 WL 6542834, at *1 n.1 (D.N.J. Nov. 3, 2016); see also Lark v. Dillman, No. 1:13-

CV-0335, 2013 WL 1207467, at *2 (M.D. Pa. Mar. 5, 2013), report and recommendation adopted, No. 1:13-CV-335,

2013 WL 1207953 (M.D. Pa. Mar. 25, 2013). (See Case No. 1:23-cv-200 (Doc. 12, at PageID 44 n.4)).

February 8 incident, Plaintiff alleges he suffered a spinal cord fracture and was wrongfully charged

with (and later found guilty of) resisting arrest. (Id. at PageID 24).

Plaintiff alleges he received no treatment for his injuries for thirteen hours following the

incident. (Id.) Although the timeline is unclear from the allegations in the Complaint, it appears

that during the thirteen hours Plaintiff was transported to jail via emergency medical transport

where he asked for help for his injuries from staff and officers at the jail but his requests were

ignored. (Id. at PageID 24–25). Eventually Plaintiff was transported from the jail to Highland

District Hospital, where he was seen by medical staff and “Columbus Radiology,” who

“documented the injury to Plaintiff[‘]s back and ordered Ex-rays along with an MRI.” (Id. at

PageID 25–26). Plaintiff asserts he was diagnosed with a fracture to the spinal cord, which if left

untreated could result in his paralysis or even death. (Id. at PageID 26).

Plaintiff alleges he was given pain medication and referred to an orthopedic surgeon and

released. 4 Upon release Plaintiff alleges he was instructed to refrain from walking for several days

to avoid further injury, but that “defendants” ignored the restriction and kept Plaintiff on his feet

for transportation back to the jail. (Id.) Plaintiff alleges he requested a grievance form to report

the alleged lack of medical care or compliance with his treatment plan but was denied access to a

grievance form by several unnamed staff members on multiple occasions. (Id.)

The Court construes Plaintiffs Complaint as alleging claims of: Fourth Amendment

excessive force, and malicious prosecution/conspiracy to commit against defendants Adams,

Alexander, and Goens, a municipal liability claim against Highland County Ohio, a general claim

for failure to provide access to a grievance procedure, and Eighth Amendment cruel and unusual

4 It is unclear from the allegations in the Complaint how long Plaintiff was hospitalized, and if or when he was seen

by an orthopedic surgeon, or any future treatment he may have received or has scheduled.

punishment for deliberate indifference to medical needs against unnamed parties. (Id. at PageID

25).

Plaintiff alleges he received injuries to his torso including multiple bruises and a fractured

spine and he that he continues to suffer from reduced mobility and other undescribed permanent

disabilities. (Id. at 26). As relief Plaintiff seeks damages to recover his costs of medical treatment

and punitive damages. (Id.) It also appears Plaintiff seeks dismissal of the resisting arrest charge

brought against him. (Id. at 25).

II. STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding pro se, seeking “redress from a governmental

entity or officer or employee of a governmental entity,” and is also incarcerated, the Court is

required to conduct an initial screen of his Complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. §

1915A(a). The Court must dismiss the Complaint, or any portion of it, that is frivolous, malicious,

fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant

who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b).

A complaint is frivolous if 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. Even though the statute of limitations is an affirmative defense,

a complaint may be dismissed solely on the basis of failure to state a claim upon which relief may

be granted when it appears clear on initial screening of a complaint that the action is time-barred.

See Jones v. Bock, 549 U.S. 199, 215 (2007).

To state a claim for relief, a complaint must set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must

construe the complaint in plaintiff’s favor, accept all well-pleaded factual allegations as true, and

evaluate whether it contains “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). A complaint that consists of mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly,

550 U.S. at 555).

In the interest of justice, this Court is required to construe a pro se complaint liberally and

to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976); citing Fed.

R. Civ. P. 8(f)). Even with such a liberal construction, however, a pro se complaint must still

adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting

all the material elements’ to recover under some viable legal theory.’” Barhite v. Caruso, 377 F.

App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

III. RECOMMENDATIONS BASED ON INITIAL REVIEW

Plaintiff timely5 seeks relief pursuant to 42 U.S.C. § 1983. To state a claim under § 1983,

a plaintiff must allege and show: (1) that he was deprived of a right secured by the Constitution or

laws of the United States; and (2) that the deprivation was caused by a person acting under color

5 Plaintiff’s Complaint, filed on January 24, 2024, was filed within two years of his February 8, 2022, arrest, and

therefore is timely as, “[t]he applicable statute of limitations for 42 U.S.C. § 1983 claims arising in Ohio requires that

claims be filed within two years of their accrual.” Huntsman v. Perry Local Schools Bd. of Educ., 379 F. App'x 456,

461 (6th Cir. 2010).

of state law.6 Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part by Daniels v. Williams,

474 U.S. 327, 330 (1986)); Flagg Bros. v. Brooks, 436 U.S. 149, 155–56 (1978); Black v.

Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998). Both parts of this two-part test

must be satisfied to support a claim under § 1983. See Christy v. Randlett, 932 F.2d 502, 504 (6th

Cir. 1991).

With these concepts in mind this Court reviewed Plaintiff’s claims, breaking them into the

following categories: claims recommended for dismissal with prejudice, claims recommended for

dismissal without prejudice, and claims this Court recommends be allowed to proceed.

A. Dismissal with Prejudice

1. All claims against defendant Highland County Sheriff’s Department

Plaintiff names the Highland County Sheriff’s Department as a defendant, however, under

Ohio law a sheriff's department is not a proper defendant in a Section 1983 action. See Petty v.

Franklin County, 478 F.3d 341, 347 (6th Cir. 2007) (citing Barrett v. Wallace, 107 F. Supp. 2d

949, 954–55 (S.D. Ohio 2000)).

For this reason, this Court RECOMMENDS all claims against the Highland County

Sheriff’s Department be DISMISSED with prejudice.

2. All claims seeking dismissal of charges

To the extent that Plaintiff seeks dismissal of his resisting arrest charge and conviction,

such relief is not available under § 1983. When a state prisoner “seeks ... a determination that he

is entitled to immediate release or a speedier release from ... imprisonment, his sole federal remedy

is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

6 The Court notes that police officers are generally considered to act under color of state law. See United States v.

Torres–Ramos, 536 F.3d 542, 554 (6th Cir. 2008); Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (citing

Graham v. Connor, 490 U.S. 386, 394 (6th Cir. 1989)).

For this reason, this Court RECOMMENDS all claims seeking dismissal of the resisting

arrest charge and conviction be DISMISSED with prejudice as such relief is not cognizable under

§ 1983.

B. Dismissal without Prejudice

1. All claims against defendants Carroll, Kuhn, and Adena Health

Plaintiff names Carroll, Kuhn, and Adena Health as defendants. (Doc. 2 at PageID 23).

However, because Plaintiff has not alleged facts to support any claims against these three

defendants, this Court recommends that they be dismissed entirely from this suit.

Identifying who harmed the plaintiff and how they did so is a “basic pleading essential”

required to state a claim. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v.

Wal-Mart Stores, Inc., 507 F. App'x 543, 547 (6th Cir. 2012) (courts “are not required to conjure

up allegations not pleaded or guess at the nature of an argument.”). “The Sixth Circuit ‘has

consistently held that damage claims against government officials arising from alleged violations

of constitutional rights must allege...facts that demonstrate what each defendant did that violated

the asserted constitutional right.’” Reid v. City of Detroit, No. 18-13681, 2020 WL 5902597, at

*6 (E.D. Mich. Oct. 5, 2020) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))

(emphasis in original). That is, Plaintiff must show that the alleged violation of his constitutional

rights “was committed personally” by the defendant. Id. (emphasis in original); Heyerman v. Cty.

of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (persons sued in their individual capacities under §

1983 are liable only for their own unconstitutional behavior) (citations omitted).

Here, defendants Carroll, Kuhn, and Adena Health are named as defendants in the case

caption but are otherwise not mentioned in the Complaint. See (Doc. 2). Plaintiff provides no

information regarding how Carroll, Kuhn, or Adena Health allegedly violated Plaintiff’s rights.

Gilmore v. Corr. Corp. of Am., 92 F. App'x 188, 190 (6th Cir. 2004) (“Merely listing names in the

caption of the complaint and alleging constitutional violations in the body of the complaint is not

enough to sustain recovery under § 1983,” without connecting the claims alleged with a specific

defendant or defendants) (citing Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978)). Moreover,

in relation to defendant Adena Health, due to the lack of any specific allegations, this Court is

unable to determine whether Adena Health qualifies as a “person acting under color of law” as

required to proceed under § 1983.

For these reasons, this Court RECOMMENDS that defendants Carroll, Kuhn, and Adena

Health and all claims against them in both their official and individual capacities be DISMISSED

without prejudice.

2. All claims against the remaining defendants in their official capacities7

“[N]either a State nor its officials acting in their official capacities are ‘persons’ or purposes

of § 1983 liability.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (explaining

that an official capacity suit against a state official is no different from a suit against the state

itself). An official capacity suit is generally another way of pleading suit against the entity of

which the defendant is an agent, official, or employee, and the pleader may recover damages

against the entity rather than the personal assets of the individual. Kentucky v. Graham, 473 U.S.

159, 166 (1985). Therefore, when an individual state actor is sued in his or her official capacity,

7 Plaintiff does not state whether he seeks to sue any defendant in their individual capacity, official capacity, or both.

See (Doc. 2 at PageID 23) (listing the name of each party followed by “defendants.”). Generally, in the Sixth Circuit,

where a plaintiff does not indicate whether a government official is sued in his or her individual or official capacity,

only “absent any indication that these defendants are being sued individually, we must assume that they are being sued

in their official capacities.” Moore, 272 F.3d at 772 (emphasis in original) (internal citation and quotation omitted).

However, in the interest of providing a thorough review, the Court shall review the claims against the remaining

defendants Adams, Alexander, and Goens as if Plaintiff intended to sue them in both their individual and official

capacities.

“in all respects other than name, [the suit or claim is] to be treated as a suit against the entity.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

As Adams, Alexander, and Goens are employed by the Highland County Sheriff, any

claims against them in their official capacity would be construed as claims against the County of

Highland, Ohio. However, local governments like the County of Highland, Ohio, “may not be

sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when

execution of a government’s policy or custom . . . inflicts the injury that the government as an

entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

“To state a municipal-liability claim under § 1983, the plaintiff must allege the deprivation

(1) of a right secured by the Constitution or laws of the United States, (2) that was directly caused

by a municipal policy or custom.” Nichols v. Wayne Cnty. Mich., 822 F. App’x 445, 448 (6th Cir.

2020) (citing Hardrick v. City of Detroit, 876 F.3d 238, 243 (6th Cir. 2017)). Here, Plaintiff meets

the first element as he alleges Fourth Amendment excessive force claims and Eighth Amendment

deliberate indifference to medical needs claims, both of which arise under the constitution.

To establish an unconstitutional “policy” or “custom” he must demonstrate one of the

following: “(1) the existence of an illegal official policy or legislative enactment; (2) that an

official with final decision-making authority ratified illegal actions; (3) the existence of a policy

of inadequate training or supervision; or (4) the existence of a custom of tolerance or acquiescence

of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas

v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). This Court construes Plaintiff’s

allegations as alleging both a failure to train claim and a custom of tolerance claim. (Doc. 2 at

PageID 24–25).

To proceed on a failure to train theory, Plaintiff must allege facts showing that (1) a training

program is inadequate to the tasks that the officers must perform; (2) the inadequacy is the result

of the city’s deliberate indifference; and (3) the inadequacy is closely related to or actually caused

the plaintiff injury. Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (citing City of

Canton, Ohio v. Harris, 489 U.S. 378, 389–91 (1989)) (internal quotation marks omitted). In this

context, deliberate indifference can be demonstrated in two ways: “through evidence of prior

instances of unconstitutional conduct demonstrating that the [municipality] had notice that the

training was deficient and likely to cause injury but ignored it,” or “through evidence of a single

violation of federal rights, accompanied by a showing that the [municipality] had failed to train its

employees to handle recurring situations presenting an obvious potential for such a violation.”

Harvey v. Campbell County, Tenn., 453 Fed. Appx. 557, 562–63 (6th Cir. 2011) (internal citations

omitted).

Plaintiff alleges that Highland County sheriff’s officers are improperly trained or simply

lack any training for determining when medical care is needed, citing to the use of excessive force

and failure to provide immediate medical care to himself as support. (Doc. 2 at PageID 24).

However, Plaintiff’s Complaint contains no allegations of prior instances of unconstitutional

conduct such that the County of Highland had notice of a training deficiency. Further, Plaintiff

alleges no facts indicating any lack of training in connection with the alleged failure to obtain

medical care for Plaintiff by the remaining defendants. While Plaintiff alleges that he was denied

medical care for 13 hours, as discussed further in the section addressing his Eighth Amendment

claims he also does not state who denied him care, or the circumstances surrounding the denial(s).

(Id.) Nor does Plaintiff allege facts connecting the County’s alleged failure to train with a

deliberate or conscious choice to ignore providing training for such events with the knowledge that

such events potentially occur. Sanford v. Cnty. of Lucas, Ohio, No. 3:07-CV-3588, 2009 WL

723227, at *5 (N.D. Ohio, Mar. 16, 2009).

Similarly, a custom-of-tolerance claim requires a showing that there was a pattern of

inadequately investigating similar claims. See Thomas v. City of Chattanooga, 398 F.3d 426, 433

(6th Cir. 2005); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989). However, “a

plaintiff would not need to establish a pattern of past misconduct where the actor was a

policymaker with final policymaking authority.” Burgess v. Fischer, 735 F.3d 462, 479 (6th Cir.

2013) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481–84 (1986) (plurality opinion);

Miller v. Calhoun Cnty., 408 F.3d 803, 816 (6th Cir. 2005)). On a single-act theory, “a plaintiff

must demonstrate that a ‘deliberate choice to follow a course of action is made from among various

alternatives by the official ... responsible for establishing final policy with respect to the subject

matter in question,’” and must be a “moving force behind or cause of the plaintiff’s harm.” Id.

(quoting Pembaur, 475 U.S. at 483).

Here, in support for his custom of tolerance claim Plaintiff alleges that the “Sheriff or his

administrators deliberately allow the OIC (Officer in Charge) to stop individuals from getting

emergency help” for reasons ranging from being short staffed to failing to consider an incident as

an emergency “based on protocol from policies covering their actions” resulting in “indifference

to situations.” (Doc. 2 at PageID 25). However, although Plaintiff concludes that the County

deliberately fails to provide emergency help to “individuals,” he points to no prior instances of

similar misconduct. See Burgess, 735 F.3d at 478 (requiring allegations of similar misconduct).

Plaintiff also fails to provide any allegations addressing the action of a specific official, rendering

any single-act theory claim insufficiently plead.

Accordingly, this Court RECOMMENDS all claims against the County of Highland as

construed via official capacity claims against any defendants be DISMISSED without prejudice.

3. Eighth Amendment – Deliberate Indifference to Medical Needs

Plaintiff’ alleges that during his February 8, 2022, arrest he suffered a “spinal cord fracture”

as well as abdominal scrapes and bruises, but that he was denied medical treatment for thirteen

hours before being taken to a hospital for treatment. (Doc. 2 at PageID 25). Further, upon release

Plaintiff alleges he was given medical restrictions of no walking for several days to “prevent

further injury” but that those restrictions were ignored, and Plaintiff was kept “upon his feet for

transportation back to the jail.” (Id. at PageID 26). As a result of his injuries Plaintiff alleges he

now has “reduced mobility and permanent disability.” (Id.)

Under the Eighth Amendment’s prohibition against cruel and unusual punishment, prison

officials are forbidden from “ ‘unnecessarily and wantonly inflicting pain’ on an inmate by acting

with ‘deliberate indifference’ toward [ ] serious medical needs.” Blackmore v. Kalamazoo County,

390 F.3d 890, 895 (6th Cir. 2004) (quoting Estelle, 429 U.S. at 104). Deliberate indifference “is

a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397,

410 (1997). A claim of deliberate indifference to medical needs is described as requiring an

objective and subjective component, both of which must be established by a plaintiff: (1) a

sufficiently grave deprivation of a basic human need (the objective component); and (2) a

sufficiently culpable state of mind on behalf of the person acting under color of state law (the

subjective component). Wilson v. Seiter, 501 U.S. 294, 298 (1991).

In relation to the objective component, because society does not expect that prisoners will

have unqualified access to health care, deliberate indifference to medical needs amounts to an

Eighth Amendment violation only if those needs are “serious.” See Estelle, 429 U.S., at 103-104.

A sufficiently serious medical need is one “that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the necessity for

a doctor's attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citations omitted).

Serious medical needs have been found when a failure to treat an injury or condition could result

in “further significant injury or the unnecessary and wanton infliction of pain.” Ford v. LeMire,

No. 03-CV-10176-BC, 2004 WL 1234137, at *4 (E.D. Mich. June 1, 2004) (internal quotations

omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other

grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997)).

The subjective element requires a showing that prison officials have “a sufficiently

culpable state of mind in denying medical care.” Id. (internal citation and quotation omitted).

Although “it is not necessary that the prison officials consciously sought to inflict pain by

withholding treatment,” Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988), “[m]ere

negligence is not sufficient,” Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993). Rather, the

plaintiff must “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.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). In other words, “[t]he

official's conduct ‘must demonstrate deliberateness tantamount to an intent to punish.’” Hicks, 992

F.2d at 1455 (quoting Molton, 839 F.2d at 243).

Plaintiff’s allegations lack the requisite facts to support his deliberate indifference claim.

Plaintiff alleges he was denied medical care for thirteen hours, but he does not indicate who denied

him care. While he alleges defendants Adams, Alexander, and Goens were present for the arrest,

he does not indicate if they were aware of his injuries or how long they were in his presence after

the arrest was effectuated. Plaintiff alleges he was transported to a jail but does not mention who

transported him or whether he asked for assistance for his injuries during transport, or who was

aware or his injuries when he arrived at the jail, simply alleging he notified “[d]epartment staff

and the jail” but was ignored. (Doc. 2 at PageID 25–26).

As a spinal cord fracture is not readily visible to the naked eye, and as Plaintiff provides

no detail regarding the nature or extent of his visible injuries, nor does he provide any information

regarding who he notified of his need for medical care, there is no information to allow this Court

to determine who violated Plaintiff’s rights. Put another way, this Court cannot presume which

defendants were aware of Plaintiff’s need for medical care without specific allegations connecting

a defendant to the claim. To the extent Plaintiff alleges he was forced to stand for transport from

the hospital back to the jail in violation of medical advice, this allegation suffers from the same

lack of defendant-claim connection.

As at this stage of review Plaintiff’s Complaint meets the objective pleading standard for

a deliberate indifference to medical needs claim but fails to connect any defendants with the claims

made. Dismissal is appropriate where a plaintiff wholly fails to link defendants to the violations

alleged as a court cannot attempt to “match particular defendants with particular allegations where

the plaintiff has failed to do so.” Culberson v. Franklin Cnty. Correction,, No. 2:22-CV-3671,

2022 WL 17600955, at *3 (S.D. Ohio Dec. 13, 2022).

Accordingly, this Court RECOMMENDS all Eighth Amendment claims against all

defendants in their individual capacities be DISMISSED without prejudice.

4. Access to Grievance Procedure

Although not specifically alleged as a claim, Plaintiff alleges he was denied access to filing

grievances. (Doc. 2 at PageID 26). However, to the extent Plaintiff sought to file such a claim it

cannot proceed.

There is “no constitutional right to an effective, fair, or properly functioning prison

grievance procedure, and a prison inmate does not have a constitutionally protected interest in

prison grievance procedures.” Young v. Hodge, No. 3:12-0009, 2012 WL 5494892, at *7 (M.D.

Tenn. Nov. 13, 2012), report and recommendation adopted, No. 3:12-CV-0009, 2013 WL 440964

(M.D. Tenn. Feb. 5, 2013) (citing Walker v. Michigan Dep't of Corr., 128 Fed. Appx. 441 (6th Cir.

2005); Miller v. Haines, 156 F.3d 1231, 1998 WL 476247 (6th Cir. Aug.3, 1998); Spencer v.

Moore, 638 F. Supp. 315 (E.D. Mo. 1986); Azeez v. DeRobertis, 568 F. Supp. 8 (N.D. Ill. 1982)).

Moreover, Plaintiff does not allege who he requested a grievance form from. Therefore, even if

such a claim was potentially viable, this claim suffers from the same defect as many of his other

claims—a lack of connection between the claim made and any specific defendant.

For these reasons, this Court RECOMMENDS all claims regarding the grievance

procedure against all defendants in their individual capacities be DISMISSED without prejudice

for failure to state a claim on which relief may be granted.

5. False Arrest

Plaintiff alleges that he was falsely arrested, but he does not connect his false arrest claim

to the probation violation which was the basis for his arrest on February 8, 2022. Instead, it appears

Plaintiff alleges that he was charged with and found guilty of resisting arrest during his arrest for

probation violations, and that such charges were falsely brought. See (Doc. 2 at PageID 24).

While Ohio law recognizes the tort of false arrest, such a claim “requires proof that one

was intentionally confined ... for any appreciable time, against [her] will and without lawful

justification.” Evans v. Smith, 97 Ohio App.3d 59, 70, 646 N.E.2d 217, 224 (1994). Here, Plaintiff

was arrested for a probation violation, which he does not contest. Moreover, he was found guilty

of the resisting arrest charge, indicating lawful justification existed for those charges. As such,

any claim for wrongful arrest must fail.

For these reasons, this Court RECOMMENDS all claims for false arrest against all

defendants in their individual capacities be DISMISSED without prejudice for failure to state a

claim on which relief may be granted.

6. Malicious Prosecution and Civil Conspiracy

Plaintiff appears to allege that defendants Adams, Alexander and Goens conspired to

maliciously prosecute Plaintiff via bringing allegedly false resisting arrest charges against him.

(Doc. 2 at PageID 25). Both claims, however, are subject to dismissal.

For malicious prosecution claims, “the statute of limitations begins to run when the

criminal proceedings against the defendant are terminated, regardless of the stage at which those

proceedings may have been when terminated.” Dawson v. Monroe Cnty., Tenn., No. 3:13–CV–

240, 2014 WL 700400, at *5 (E.D. Tenn. 2014) (emphasis added) (citing Sykes v. Anderson, 625

F.3d 294, 308 (6th Cir. 2010). However, malicious prosecution is a type of claim that accrues

“only once the underlying criminal proceedings have resolved in the plaintiff’s favor.”

McDonough v. Smith, 588 U.S. ---, 139 S. Ct. 2149, 2156 (2019) (citing Heck v. Humphrey, 512

U.S. 477, 484 (1994)).

Plaintiff’s malicious prosecution claim is therefore premature as Plaintiff does not allege

that the underlying criminal prosecution against him has terminated in his favor.8 Rembert v.

Fishburn, No. 3:15-cv-0949, 2015 WL 5842149, at *2 (M.D. Tenn. 2015) (malicious prosecution

claim is premature when criminal proceedings have yet to conclude). As a “claim for civil

8While Plaintiff alleges that he was found guilty of resisting arrest, the claim is premature to the extent he may be in

the process of, or is still able to, seek review of that charge in the state courts.

conspiracy under § 1983 exists only where the plaintiff has established a separate and actionable

constitutional injury,” a civil conspiracy claim cannot proceed without a corresponding actionable

constitutional claim. Braxton v. Heritier, No. 14-12054, 2015 WL 3915857, at *5 (E.D. Mich.

2015) (quoting Rapp v. Dutcher, 557 F. App’x 444, 450 (6th Cir. 2014)). Put another way, a civil

conspiracy claim survives only to the extent a separate constitutional claim also survives. Id. As

Plaintiff’s malicious prosecution claims are premature, any civil conspiracy claims relating to it

also must fail.

As such, this Court RECOMMENDS all malicious prosecution claims against all

defendants (as well as any due process, equal protection, and conspiracy claims relating to his

malicious prosecution claims) must be DISMISSED without prejudice for failure to state a claim

upon which relief may be granted subject to Plaintiff’s ability to reassert such claims if he is

eventually exonerated on the resisting arrest charges.

C. Claim That May Proceed

Plaintiff brings a claim of Fourth Amendment excessive force against defendants Adams,

Alexander, and Goens resulting from the fractured back and torso injuries he sustained during his

arrest on February 8, 2022. (Doc. 2 at PageID 24–25).

A criminal suspect has a “constitutional right to be free from the use of physical force by

police officers when he is not resisting efforts to apprehend him.” Moser v. Etowah Police Dep’t,

27 F.4th 1148, 1154 (6th Cir. 2022) (quoting Coffey v. Carroll, 933 F.3d 577, 589 (6th Cir. 2019)

(citing Hagans v. Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 509 (6th Cir. 2012)). A claim that a

police officer used excessive force in the course of an arrest is properly analyzed under the Fourth

Amendment and its “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395

(1989). See also Smith v. City of Troy, Ohio, 874 F.3d 938 (6th Cir. 2017). Under this standard,

the court must take into consideration the totality of the circumstances, Graham, 490 U.S. at 396,

including “whether the officer’s use of force was reasonable, the court must consider the severity

of the crime at issue, whether the suspect posed a threat to the officers or others, and whether the

suspect was actively resisting arrest or attempting to avoid arrest by fleeing.” Smith, 874 F.3d at

944 (citation omitted).

Plaintiff alleges that when he was being placed under arrest, he was lying face down,

“offering no resistance” when defendants Adams, Alexander, and Goens, caused significant injury

to his abdomen including fracturing his spine via striking him repeatedly in his back with their

knees, in violation of the Fourth Amendment. (Doc. 2 at PageID 24–25). While defendants

Alexander, Adams and, Goens deny they caused any serious bodily harm to Plaintiff during his

arrest and that Plaintiff suffered no acute injury as a result, at this stage in the proceeding Plaintiff’s

allegations, considering the severity of the injuries to Plaintiff and Plaintiff’s alleged compliance

with the officer’s instructions during his arrest, meet the pleading standard to allow a Fourth

Amendment excessive force claim against Alexander, Adams, and Goens to proceed at this stage

of review.

However, while defendants Alexander, Adams and, Goens deny they caused any serious

bodily harm to Plaintiff, they also allege they are immune to any claims against them. (Doc. 3 at

PageID 29–30). Government officials sued in their individual capacities are entitled to seek

qualified immunity. Pearson v. Callahan, 555 U.S. 223 (2009). This immunity extends to officials

performing discretionary functions unless their actions violate a constitutional right that was

clearly established at the time of their misconduct. Id. A right is “clearly established if [a]

reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

Here, to the extent Adams and Alexander assert a qualified immunity claim, “[w]here ...

the reasonableness of the force utilized turns upon which party's version of the facts is accepted, a

court should not grant summary judgment on qualified immunity grounds.” See Murray–Ruhl v.

Passinault, 246 F. App'x 338, 343 (6th Cir. 2007). At this stage in the proceedings, affording the

liberal construction of claims and taking all claims Plaintiff alleges as true as this Court must,

dismissal on qualified immunity grounds is not appropriate.

As such, this Court RECOMMENDS that Plaintiff’s Fourth Amendment excessive force

claim against Adams, Alexander, and Goens be allowed to PROCEED.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendant Highland County Sheriff’s Department be DISMISSED from this

proceeding with prejudice as an improper party. The Court further RECOMMENDS that all

claims by which Plaintiff seeks release from incarceration be DISMISSED with prejudice as

non-cognizable. Further, the Court RECOMMENDS that only Plaintiff’s Fourth Amendment

excessive force claim against defendants Adams, Alexander, and Goens be allowed to PROCEED

and that all remaining claims against all remaining defendants be DISMISSED without

prejudice.

2. The Court further RECOMMENDS that the District Court certify pursuant to 28

U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of an Order adopting this Report

and Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to

appeal in forma pauperis should be denied.

June 11, 2024 s/Stephanie K. Bowman

Stephanie K. Bowman

UNITED STATES MAGISTRATE JUDGE

Procedure on Objections to Report and Recommendation

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

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