O'Neill v. Adams County Jail

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAMION O’NEILL,

Plaintiff,

Case No. 1:23-cv-200

v.

JUDGE DOUGLAS R. COLE

ADAMS COUNTY JAIL, et al., Magistrate Judge Deavers

Defendants.

OPINION AND ORDER

Plaintiff Damion O’Neill alleges Adams County Sheriff Kimmy Rogers,1 Adams

County Jail Administrator Lieutenant Hayslip, and various other Adams County Jail

(the Jail) employees (Mike Perigo, Mike Shamblin, Paul, Aemeont, “Big John,”2 and

Unknown Jane Doe Nurse) (collectively, Defendants) violated his civil rights during

his pretrial detention at the Jail. (Doc. 20). He alleges Defendants confined him to an

isolation cell in which part of the ceiling collapsed on him; denied him sanitary eating

utensils, personal hygiene items, food, and medical care; fed him a diet of pop tarts

(which he says contain pork, which he cannot eat because he is Muslim) and cheese

1 In his operative complaint, O’Neill refers to Sheriff Rogers as “Kinney” Rogers. (Third. Am.

Compl., Doc. 20, #77). But the Ohio Attorney General maintains a law enforcement directory

on his website, and that site lists Sheriff Rogers’ first name as Kimmy, not Kinney. Law

Enforcement Directory – Sheriffs, Ohio Att’y Gen., https://perma.cc/EL5K-VUYC. The Court

can take judicial notice of that information given it is posted on an official government

website. Epps v. United States, No. 1:23-cv-510, 2024 WL 2176877, at *5 n.1 (S.D. Ohio May

15, 2024); Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to

reasonable dispute because it: (1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.”). So the Court refers to Sheriff Rogers as Kimmy, not

Kinney, in this Opinion and Order.

2 O’Neill refers to this Defendant as “Big John” in the Third Amended Complaint. (Doc. 20,

#79). He does not provide Big John’s real name.

sandwiches; denied him access to a Qur’an and Islamic services; and forced him to

sign a piece of paper stating he would convert to Christianity to receive adequate

meal trays. (Id.).

The matter is now before the Court on O’Neill’s Third Amended Complaint

(Doc. 20), the Magistrate Judge’s original, (R&R, Doc. 12), and supplemental, (Suppl.

R&R, Doc. 22), Reports and Recommendations, and O’Neill’s objections to the

Supplemental R&R, (Doc. 23). For the reasons discussed below, the Court REJECTS

AS MOOT the R&R (Doc. 12), OVERRULES O’Neill’s Objections to the

Supplemental R&R (Doc. 23), and ADOPTS IN PART the Supplemental R&R (Doc.

22). As a result, the Court DISMISSES WITHOUT PREJUDICE all of O’Neill’s

official-capacity claims. It also DISMISSES WITHOUT PREJUDICE O’Neill’s

individual-capacity claims arising because of his cell ceiling’s falling on him, his

alleged denial of a single meal, and the nature of the food he was provided. And it

DISMISSES WITHOUT PREJUDICE all claims against Sheriff Rogers, except for

O’Neill’s individual-capacity claim against him based on his alleged extended refusal

to give O’Neill personal hygiene items.

The Court explains, at the end, which claims remain after those dismissals.

BACKGROUND3

A. Factual Background

O’Neill begins his now-operative Third Amended Complaint by making various

allegations related to Defendants’ behavior throughout his pretrial detention at the

Jail. On that score, he first alleges that Paul (a corrections officer at the Jail),

Aemeont (another corrections officer), and Hayslip (the Jail Administrator) placed

him in isolation shortly after he arrived and kept him there until his transfer out of

the Jail. (Doc. 20, #80–81, 83). Second, he says that, throughout his time at the Jail,

each of the named Defendants refused to provide him with sanitary eating utensils

or personal hygiene items such as razors and toothpaste. (Id. at #83–84). Third, he

says Hayslip denied him access to a Qur’an and Islamic services. (Id. at #84). And he

also says Hayslip, Paul, and Aemeont told him that he was allowed to attend only

Christian services. (Id.).

O’Neill’s next allegations arise from an injury he sustained in March 2023. (Id.

at #82). According to his complaint, he completed several medical care slips disclosing

that his finger was infected and had “turned purplish dark blue and swollen with

puss [sic].” (Id. at #82). Yet after Jane Doe Nurse examined his finger, she returned

3 The case comes before the Court on its sua sponte screening authority under the Prison

Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e), 1915A, which is governed by the same

standards that apply to motions to dismiss for failure to state a claim. Williams v. Parikh, __

F. Supp. 3d __, 2023 WL 8824845, at *3 (S.D. Ohio 2023) (citing Hill v. Lappin, 630 F.3d 468,

470–71 (6th Cir. 2010)). Accordingly, the Court accepts the well-pleaded allegations in the

Complaint as true at this stage. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430

(6th Cir. 2008). “But in reporting the background here based on those allegations, the Court

reminds the reader that they are just that—allegations.” Jones v. City of Cincinnati, No. 1:22-

cv-530, 2024 WL 707288, at *1 n.3 (S.D. Ohio Feb. 21, 2024).

him to his cell without providing any medical care. (Id. at #82–83). Once he was back

in his cell, Shamblin (another corrections officer) brought him “a fork and hand

sanitizer” and told him to “take care of it how you would in your country.” (Id. at #83).

O’Neill then alleges that, sometime between April 15, 2023, and April 18, 2023,

Perigo (another corrections officer) denied him dinner on one occasion. (Id. at #81–

82). Perigo allegedly explained this decision by claiming that the Jail was short on

meals that day. (Id. at #81). Then, when O’Neill told Big John (another corrections

officer) and Hayslip about Perigo’s denying him a meal, they both said there was

nothing to be done. (Id. at #82).

Also on the meal front, at some point “[p]rior to this incident[,] [Aemeont, Paul,

and Hayslip] … altered Plaintiff’s tray to [consist solely of] cheese sandwiches and

pop tarts.” (Id. at #82). The pop tarts allegedly contained pork, which violated

O’Neill’s dietary restrictions as a practicing Muslim. (Id.). And O’Neill alleges that

Paul and Hayslip forced him “to sign a paper stating he would convert[] to

Christianity so he would receive adequate food trays.” (Id.).

Finally, O’Neill alleges that an 8–9-pound chunk of the ceiling in his cell fell

and struck him on the head at some unspecified time. (Id. at #84). Big John removed

the ceiling piece from his cell, told him to “be thankful the rhubarb [sic] didn’t fall

too,”4 and allegedly never documented the incident. (Id.). Jane Doe Nurse allegedly

denied O’Neill medical care as a result of this incident, though he has since received

4 The Court believes “rhubarb” is best understood to be referring to rebar, the metal rods

typically included in concrete walls to strengthen them.

medical care from other medical staff “for complaints of memory loss and issues

regarding his balance.” (Id.).

B. Procedural History

Proceeding pro se, O’Neill filed his original Complaint on March 14, 2023, in

the Adams County Court of Common Pleas. (Doc. 2, #19 (date stamp)). While that

complaint was not the model of clarity, it appeared to include a demand for recovery

based on Defendants allegedly violating O’Neill’s constitutional rights. (Id. at #21

(“[T]his form shall serve as my Declaration to sue and [to] start litigation for … cruel

and unusual punishment.”)). Interpreting the claims as arising under § 1983,

Defendants removed the case to this Court. (Doc. 1, #3). They then answered. (Doc.

4). After that, O’Neill moved (1) to amend his Complaint to add a claim, (Doc. 11,

#38), and (2) to have the Court appoint counsel, (id.).

The Magistrate Judge granted the former request but denied the latter. (Doc.

12, #43–44). She also screened the First Amended Complaint5 under the Prison

Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e), 1915A, which applies the same

standard used to assess a motion to dismiss for failure to state a claim, Williams v.

Parikh, __ F. Supp. 3d __, 2023 WL 8824845, at *3 (S.D. Ohio 2023) (citing Hill v.

Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010)). (Id. at #44–48). Based on that

5 The Magistrate Judge treated the Motion to Amend (Doc. 11), combined with the Complaint

(Doc. 2), as O’Neill’s First Amended Complaint. (Doc. 12, #46). But there was no proposed

Amended Complaint attached to the Motion to Amend and therefore no Amended Complaint

was ever docketed in connection with the Motion to Amend. So that label is not strictly

accurate. Still, to avoid confusion, the undersigned adopts the Magistrate Judge’s label and

refers to the combination of the Motion to Amend and the Complaint as the so-called First

Amended Complaint.

screening authority, she issued the R&R.6 (Doc. 12). There, she first found that the

Jail itself is not an entity that can be sued and that, to the extent that O’Neill was

instead suing the County (the governmental entity of which the Jail is a component

part), O’Neill had failed to allege Defendants violated his constitutional rights

pursuant to a policy attributable to their employer—an element of such a claim

against a governmental entity under Monell v. Department of Social Services, 436

U.S. 658 (1978). (Doc. 12, #46–47). She then found that, because the Amended

Complaint demanded no form of relief, it did not satisfy Federal Rule of Civil

Procedure 8(a)(3). (Doc. 12, #47–48). Based on those shortcomings, she recommended

that the Court dismiss the First Amended Complaint and give O’Neill 28 days in

which to file a second amended complaint curing the deficiencies identified. (Id. at

#48–49).

Rather than object to the R&R, O’Neill decided to amend his complaint to

address the problems the Magistrate Judge identified. After the Magistrate Judge

granted O’Neill’s request for an extension in which to do so, (Doc. 14), O’Neill timely

filed the Second Amended Complaint (Doc. 15). Defendants answered. (Doc. 16). The

Magistrate Judge then entered a deficiency order identifying several deficiencies in

the Second Amended Complaint and allowing O’Neill to amend his Complaint once

more to address those further deficiencies. (Doc. 19, #74–76).

6 The same docket entry, Doc. 12, addresses both non-dispositive (whether to allow leave to

amend and whether to appoint counsel) and dispositive (dismissal) matters. So technically,

it is an Order as to the former and an R&R as to the latter.

O’Neill accepted that invitation and filed his Third Amended Complaint—the

now-operative complaint. (Doc. 20). The Third Amended Complaint names Rogers,

Hayslip, Paul, Aemeont, Shamblin, Big John, Perigo, and Jane Doe Nurse as

Defendants. (Id. at #77–80). And it states that it asserts claims under 42 U.S.C.

§ 1983 and Monell. (Id. at #85). In terms of relief, O’Neill seeks various forms of

damages—“punitive damages,” “reparations for the financial cost to feed himself

when the jail would not provide adequate meals,” and “compensation” for his

“physical[,] emotional[,] and psychological trauma”—as well as “removal of

[D]efendants from their positions” and “other appropriate injunctions.” (Id. at #86).

The Magistrate Judge then screened the Third Amended Complaint and issued

the Supplemental R&R. (Doc. 22). She construed the that complaint as bringing:

(1) conditions-of-confinement claims based on O’Neill’s placement in isolation, the

falling ceiling, the jail staff’s denial of sanitary utensils and personal hygiene items,

its denying him one meal, and its decision to alter his meals to be cheese sandwiches

and pop tarts; (2) deliberate-indifference-to-serious-medical-needs claims based on

the jail staff’s denying O’Neill medical care for the injuries to his hand (the infection)

and head (the concrete falling); and (3) First Amendment claims based on the jail

staff’s denying O’Neill access to a Qur’an and Islamic services, serving him items

containing pork, and making him promise to convert to Christianity. (Id. at #101).

And she construed each claim as being asserted against each Defendant who was

allegedly involved in the associated incident in both his individual and official

capacities. (Id. at #101 n.3).

Of those claims, the Magistrate Judge recommended allowing the following

claims to proceed: (1) the individual- and official-capacity conditions-of-confinement

claims against Hayslip, Paul, and Aemeont based on their placing O’Neill in extended

isolation; (2) the individual- and official-capacity deliberate-indifference claims

against Jane Doe Nurse and Shamblin for denying O’Neill care for his injured finger;

(3) the individual- and official-capacity deliberate-indifference claims against Jane

Doe Nurse and Big John for denying O’Neill care for his head injury; (4) the

individual- and official-capacity First Amendment claims against Hayslip for denying

O’Neill a Qur’an; and (5) the individual- and official-capacity First Amendment

claims against Hayslip, Paul, and Aemeont for denying O’Neill religious services,

serving him food containing pork, and making him promise to convert to Christianity.

(Id. at #102–03). She recommended dismissing the remaining claims with prejudice.

(Id. at #109–10). And she also recommended adopting the original R&R wholesale.

(Id. at #110).

O’Neill timely objected. (Doc. 23). He contends the Magistrate Judge

misunderstood some of the facts. (Id. at #113, 115). He also argues that the Court

should not dismiss Sheriff Rogers from the Complaint because Rogers knew about

the housing conditions at the Jail. (Id. at #113). And he claims Defendants are

unfairly using the Federal Rules of Civil Procedure against him. (Id. at #115

(“Plaintiff … believes the defendants moved to have this matter heard in this

Honorable Court for the sole purpose of having it die on federal procedure. Plaintiff

[o]bjects to the Dismissal of any Defendant, because all have contributed to the injury

and discrimination suffered by the Plaintiff.”)).

These matters are now ripe for review.

LEGAL STANDARD

“Under Federal Rule of Civil Procedure 72(b)(3), district courts review an R&R

de novo after a party files a timely objection. But that review extends only to any

portion to which a proper objection was made.” Canter v. Alkermes Blue Care Elect

Preferred Provider Plan, No. 1:17-cv-399, 2024 WL 2698405, at *4 (S.D. Ohio May 24,

2024) (cleaned up). In response to such an objection, “the district court may accept,

reject, or modify the recommended disposition; receive further evidence; or return the

matter to the magistrate judge with instructions.” Id. (cleaned up). If a party makes

only a general objection, on the other hand, that “has the same effect[] as would a

failure to object.” Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th

Cir. 1991). “A litigant must identify each issue in the R&R to which he objects with

sufficient clarity, or else forfeit the Court’s de novo review.” Canter, 2024 WL

2698405, at *4 (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“The

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

that are dispositive and contentious.”)).

That said, O’Neill is proceeding pro se. Pro se litigants’ pleadings are to be

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

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

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

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

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

treatment of substantive law.” Johnson v. Stewart, No. 08-1521, 2010 WL 8738105,

at *3 (6th Cir. May 5, 2010) (citations omitted).

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

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

is no clear error on the face of the [R&R] … to accept the recommendation.’” Redmon

v. Noel, No. 1:21-cv-445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021) (collecting

cases).

Finally, the Court is reviewing the Complaint under 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A, which permit sua sponte dismissals for failure to state a claim upon which

relief may be granted. Because such dismissals are governed by the same standard

that applies to motions to dismiss for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6), Hill, 630 F.3d at 470–71, the motion-to-dismiss standard

also comes into play here.

To survive a motion to dismiss for failure to state a claim, a “complaint must

present sufficient facts to ‘state a claim to relief that is plausible on its face.’” Robbins

v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th Cir. 2017) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While a ‘plausible’ claim for relief

does not require a showing of probable liability, it requires more than ‘a sheer

possibility that a defendant has acted unlawfully.’” Brave Optical, Inc. v. Luxottica of

Am., Inc., No. 1:23-cv-793, 2024 WL 3173504, at *3 (S.D. Ohio June 26, 2024) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “In other words, a plaintiff must provide

a short and plain statement of the claim showing that the pleader is entitled to relief.”

Id. (cleaned up).

To meet this pleading standard, a complaint must contain “either direct or

inferential allegations respecting all material elements to sustain a recovery under

some viable legal theory.” Terry v. Tyson Farms, Inc., 604 F.3d 272, 275–76 (6th Cir.

2010) (citation omitted). And “conclusory allegations or legal conclusions

masquerading as factual allegations will not suffice.” Id. at 276 (cleaned up). In short,

an action will be dismissed where “there is no law to support the claims made” or “the

facts alleged are insufficient to state a claim.” Stew Farm, Ltd. v. Nat. Res.

Conservation Serv., 967 F. Supp. 2d 1164, 1169 (S.D. Ohio 2013).

In making that determination, the Court “construe[s] the complaint in the light

most favorable to the plaintiff, draw[s] all reasonable inferences in its favor, and

accept[s] all well-pleaded allegations in the complaint as true.” Keene Grp., Inc. v.

City of Cincinnati, 998 F.3d 306, 310 (6th Cir. 2021). But that does not mean the

Court must take everything plaintiffs allege at face value, no matter how

unsupported. The Court may disregard “naked assertions” of fact or “formulaic

recitations of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (cleaned up).

And it has limited scope to consider materials outside the pleadings. Elec. Merch. Sys.

LLC v. Gaal, 58 F.4th 877, 883 (6th Cir. 2023) (“Generally, in considering a motion

to dismiss, the district court is confined to considering only the pleadings ... .

However, the court may, in undertaking a 12(b)(6) analysis, take judicial notice of

matters of public record, orders, items appearing in the record of the case, and

exhibits attached to the complaint [so long as they meet the strictures of Federal Rule

of Civil Procedure 10(c)].” (cleaned up)).

LAW AND ANALYSIS

The Court begins by addressing the Complaint, the First Amended Complaint,

the R&R (which screened the First Amended Complaint), and the Second Amended

Complaint. Finding those moot, it then turns to the Third Amended Complaint and

the Supplemental R&R, the latter of which it adopts in part.

A. The Complaint, First Amended Complaint, the Second Amended

Complaint, and the R&R

The Complaint, First Amended Complaint, Second Amended Complaint, and

original R&R are all moot. That is because each successive version of the complaint

rendered the immediately preceding version moot. Parry v. Mohawk Motors of Mich.,

Inc., 236 F.3d 299, 306–07 (6th Cir. 2000); Green v. Mason, 504 F. Supp. 3d 813, 826

(S.D. Ohio 2020) (“As a general matter, an amended complaint supersedes the

original complaint.” (cleaned up)). In other words, “[w]hen [O’Neill] filed the First

Amended Complaint, [he] mooted the Complaint.” Epps v. United States, No. 1:23-cv-

510, 2024 WL 2176877, at *3 (S.D. Ohio May 15, 2024). The Second Amended

Complaint then mooted the First Amended Complaint. Jones v. Ohio Dep’t of Pub.

Safety, No. 2:22-cv-3692, 2024 WL 495529, at *1 n.3 (S.D. Ohio Feb. 7, 2024) (“[T]he

second proposed amended complaint ... supersedes the first proposed amended

complaint and controls the case from the time it is filed.”). “As a result, the []R&R

screening the [First Amended] Complaint is also moot.” Epps, 2024 WL 2176877, at

*3. (The Court therefore rejects the Supplemental R&R’s recommendation that it

adopt the R&R. (Doc. 22, #109).) And the Third Amended Complaint, in turn, mooted

the Second Amended Complaint. So the case is now before the Court on just the Third

Amended Complaint, the Supplemental R&R, and O’Neill’s objections to the

Supplemental R&R.

B. The Third Amended Complaint and the Supplemental R&R

With those preliminary matters out of the way, the Court turns to the Third

Amended Complaint. The Court begins by reviewing O’Neill’s official-capacity claims,

followed by his individual-capacity claims.7 It then concludes by addressing O’Neill’s

argument that Rogers, as the highest-ranking official at the Jail, is ultimately

responsible for conditions at the Jail.

1. The Official-Capacity Claims

“[I]ndividuals sued in their official capacities stand in the shoes of the entity

they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky v.

Graham, 473 U.S. 159, 165 (1985)). Accordingly, “[a] suit against an individual in his

official capacity is the equivalent of a suit against the governmental entity.” Matthews

v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Mich. Dep’t of State Police,

7 Defendants reserve a defense of failure to exhaust administrative remedies under the

PLRA. (Doc. 21, #89). But “[f]ailure to exhaust administrative remedies is an affirmative

defense under the PLRA that the defendant bears the burden of establishing.” Clark v.

Owens, No. 22-1276, 2022 WL 19396680, at *2 (6th Cir. 2022). And “courts generally cannot

grant motions to dismiss on the basis of an affirmative defense unless the plaintiff has

anticipated the defense and explicitly addressed it in the pleadings.” Est. of Barney v. PNC

Bank, Nat’l Ass’n, 714 F.3d 920, 926 (6th Cir. 2013) (cleaned up). So the Court does not

consider exhaustion now. Should Defendants later establish that O’Neill’s claims are

unexhausted, however, those claims would be subject to dismissal without prejudice. See

Hamilton v. Wellman TD, No. 1:23-cv-173, 2024 WL 1256196, at *3 (S.D. Ohio Mar. 25, 2024).

491 U.S. 58, 68 (1989)). “Any claim against … [any defendant] in [his] official

capacit[y], then, is the equivalent of suing [Adams] County—[his] employer—as a

governmental entity.” Dillon v. Hamlin, __ F. Supp. 3d __, 2024 WL 707289, at *4

(S.D. Ohio 2024).

A viable § 1983 claim against a governmental entity such as Adams County

must allege (1) a constitutional violation, which (2) was directly caused by that

governmental entity’s policy or custom. Hardrick v. City of Detroit, 876 F.3d 238, 243

(6th Cir. 2017). As to the latter, “[t]here are at least four avenues a plaintiff may take

to prove the existence of a [governmental entity]’s illegal policy or custom.” Thomas

v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). A plaintiff may prove that

a defendant has an actionable, unconstitutional “policy” or “custom” in place by

demonstrating: “(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, 398 F.3d at 429).

As explained below, O’Neill has not adequately alleged an actionable policy

under any of the four available pathways. As a result, none of O’Neill’s official-

capacity claims survive PLRA screening.

a. Official Policy

Start with the first avenue Thomas outlines: the existence of an official, illegal

policy. “To survive a motion to dismiss based on that theory, [O’Neill] needs to allege

facts that point towards a policy or custom that forms the basis of his claim. But the

[Third Amended] Complaint cites no facts suggesting that a specific, official policy of

[Adams County] … led to [his] injuries.” Stager v. Hanshaw, No. 1:23-cv-120, 2024

WL 1556708, at *4 (S.D. Ohio Apr. 10, 2024) (cleaned up). In fact, the Third Amended

Complaint does not even contain the words “custom” or “policy.” So O’Neill cannot

support his official-capacity § 1983 claims on that basis.

b. Ratification

The second avenue does not work, either. The Third Amended Complaint

names two Defendants who are senior officials at the Jail: Rogers and Hayslip. But

O’Neill has not plausibly alleged ratification as to either one.

“The Sixth Circuit recognizes two methods for finding ratification: (1) when an

individual with policymaking authority issues a final decision affirming a

subordinate’s decision[,] ... thereby adopting it as [governmental] policy, and (2) when

a policymaker fails to meaningfully investigate the acts of a subordinate.” Meyers v.

Cincinnati Bd. of Educ., 343 F. Supp. 3d 714, 729 (S.D. Ohio 2018); see also Wright v.

City of Euclid, 962 F.3d 852, 882 (6th Cir. 2020) (“A plaintiff can establish

[governmental] liability by showing that the [governmental entity] ratifies the

unconstitutional acts of its employees by failing to meaningfully investigate and

punish allegations of unconstitutional conduct.”); Feliciano v. City of Cleveland, 988

F.2d 649, 656 (6th Cir. 1993) (“Ratification of a subordinate’s action requires more

than acquiescence—it requires affirmative approval of a particular decision made by

a subordinate.”). For ratification purposes, whether policymaking authority exists is

a question of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (“[T]he

identification of policymaking officials is a question of state law. ‘Authority to make

[governmental] policy may be granted directly by a legislative enactment or may be

delegated by an official who possesses such authority, and of course, whether an

official had final policymaking authority is a question of state law.’” (quoting Pembaur

v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion))).

The Adams County Sheriff has final authority over the Adams County Jail.

Ohio Rev. Code § 341.01 (“The sheriff shall have charge of the county jail and all

persons confined therein. He shall keep such persons safe, attend to the jail, and

govern and regulate the jail according to the minimum standards for jails in

Ohio … .”). Rogers is therefore an official with final decision-making authority under

Ohio law. But O’Neill never alleges that Rogers issued any final decisions, failed to

investigate misconduct, or otherwise ratified his subordinates’ decisions. And

O’Neill’s allegations that Rogers knew of inhumane conditions, (Doc. 20, #80), in

addition to being vague and conclusory, show, at most, mere “acquiescence.”

Feliciano, 988 F.2d at 656. As such, O’Neill’s allegations against Rogers do not

support a ratification theory.

O’Neill’s allegations against Hayslip likewise do not plausibly amount to

ratification. Because Ohio law vests Rogers with final decision-making authority,

whether Hayslip has final decision-making authority (and thus could act as a ratifier

for § 1983 purposes) depends on whether Rogers has delegated such authority to him.

And “[a]lthough it is true that final policymaking authority may be

delegated, … mere authority to exercise discretion while performing particular

functions does not make a [governmental] employee a final policymaker unless the

official’s decisions are final and unreviewable and are not constrained by the official

policies of superior officials.” Miller v. Calhoun Cnty., 408 F.3d 803, 814 (6th Cir.

2005) (cleaned up).

None of O’Neill’s allegations allow the Court to draw a reasonable inference

that Hayslip’s decisions are “final and unreviewable.” True, O’Neill says that he

“requested to speak with a supervisor [about being denied a meal tray], and

Lieutenant Hayslip responded” (i.e., arrived at his cell in response to that request).

(Doc. 20, #81). But that at most gives rise to a reasonable inference that Hayslip

“exercise[d] discretion” in administering meal tray distribution—not an inference

that his decisions were “final and unreviewable.” Miller, 408 F.3d at 814 (cleaned up).

The same is true of O’Neill’s allegations that Hayslip housed him in an isolation cell,

(Doc. 20, #83), and denied him access to a Qur’an and Islamic religious services, (id.

at #84). Those allegations simply do not suggest that Hayslip had final decision-

making authority. O’Neill therefore has not put forth any allegations giving rise to a

“reasonable inference[],” Keene Grp., 998 F.3d at 310, that Hayslip was a final

policymaker. Cf. Cady v. Cumberland Cnty. Jail, No. 2:10-cv-512, 2013 WL 3967486,

at *21, *39 (D. Me. Aug. 1, 2013) (“The Sheriff of Cumberland County has final

decision[-]making authority with respect to all policy and operational matters at the

Cumberland County Jail. … Maine law and the facts presented by the parties do not

support a finding that county jail administrators have ‘final policy-making authority’

for jail matters.”). So O’Neill cannot rely on a ratification theory based on his

allegations against Hayslip, either.

c. Failure to Train

O’Neill likewise does not satisfy the third avenue Thomas outlined. “A failure-

to-train claim ... requires a showing of prior instances of unconstitutional conduct

demonstrating that the governmental entity had ignored a history of abuse and was

clearly on notice that the training in this particular area was deficient and likely to

cause injury.” Burgess, 735 F.3d at 478 (cleaned up). To meet that burden, “a plaintiff

must do more than prove that a single officer was improperly trained or out of control,

even if the County had been aware of past complaints against that particular officer.”

Stager, 2024 WL 1556708, at *6 (cleaned up). The problem for O’Neill is that he has

not put forth any non-conclusory allegations of past complaints against any of the

Defendants, let alone allegations showing a history of abuse that put (or ought to

have put) Adams County on notice that its training or supervision of jail officials were

inadequate. For example, his vague and conclusory assertion that “Sheriff Rogers

knew that inmates house in the jail were subjected to inhumane conditions of

confinement” is not enough. (Doc. 20, #80). So none of O’Neill’s official-capacity § 1983

claims can clear the PLRA screening hurdle based on an inadequate training or

supervision theory.

d. Inaction

The same is true of the fourth and final avenue Thomas describes. The

“inaction theory,” under which “a policy of tolerating federal rights violations is

unwritten but nevertheless entrenched,” has four elements. Thomas, 398 F.3d at 429.

To prevail on that theory, a plaintiff must show: (1) “a clear and persistent pattern”

of rights violations; (2) “notice or constructive notice on the part of the defendant”;

(3) “the defendant’s tacit approval of the unconstitutional conduct, such that [its]

deliberate indifference in [its] failure to act can be said to amount to an official policy

of inaction”; and (4) a causal link between the custom and the constitutional

deprivation. Id. “Although the third and fourth elements differ from a failure-to-train

claim and the ‘inaction’ theory encompasses things other than inadequate training,

such as inadequate after-the-fact investigations, … [p]laintiffs bringing either type of

claim must show (1) a history of rights violations such that (2) the defendants were

on notice.” Stager, 2024 WL 1556708, at *6. So O’Neill falls short on the “inaction”

theory for the same reasons he falls short on the failure-to-train theory: “he has

plausibly alleged neither a clear pattern of rights violations nor notice.” Id.

* * *

In short, O’Neill has not put forth “either direct or inferential allegations” that

allow the Court to infer the existence of an Adams County policy that caused his

claimed injuries. Terry, 604 F.3d at 275–76 (citation omitted). And because the

existence of such a policy is a “material element[]” of any official-capacity claims,

which are really claims against the County, O’Neill’s official-capacity claims do not

clear the PLRA screening hurdle. Id. at 276 (citation omitted). So the Court rejects

the Supplemental R&R’s recommendation that it allow certain official-capacity

claims to proceed. (Doc. 22, #109–10). But the Court dismisses the official-capacity

claims without prejudice because O’Neill might be able to remedy these deficiencies

by pleading additional facts. Newberry v. Silverman, 789 F.3d 636, 646 (6th Cir. 2015)

(“Dismissal with prejudice and without leave to amend is not appropriate unless it is

clear ... that the complaint could not be saved by amendment.” (cleaned up)).

“Moreover, dismissal without prejudice is particularly appropriate where, as here, a

litigant is proceeding pro se and thus lacks knowledge of pleading requirements.”

Epps, 2024 WL 2176877, at *6 (citing Brown v. Matauszak, 415 F. App’x 608, 614–15

(6th Cir. 2011)).

2. The Individual-Capacity Claims

The Court turns next to O’Neill’s various individual-capacity claims. The

Magistrate Judge correctly construed the Third Amended Complaint as raising

conditions-of-confinement claims, deliberate-indifference-to-medical-need claims,

and First Amendment claims. The Court considers each category of claims in turn.

a. Conditions-of-Confinement Claims

Start with the conditions-of-confinement claims. “The Fourteenth Amendment

applies to conditions-of-confinement claims brought by pretrial detainees.” Bensfield

v. Murray, No. 4:21-cv-P104, 2022 WL 508902, at *2 (W.D. Ky. Feb. 18, 2022) (citing

Brawner v. Scott Cnty., 14 F.4th 585, 591 (6th Cir. 2021)). The standard for such

claims has two components. The first component, sometimes called the objective

component, requires a plaintiff to “show that [he] is incarcerated under conditions

posing a substantial risk of serious harm.” Id. (cleaned up). And the second

component, sometimes called the subjective component, requires a plaintiff to show

that a defendant “acted ‘deliberately’ and ‘recklessly “in the face of an unjustifiably

high risk of harm that is either known or so obvious that it should be known.”’” Id.

(quoting Brawner, 14 F.4th at 596).

O’Neill alleges that: (1) Hayslip, Paul, and Aemeont placed him in isolation

housing for his entire time at the Jail; (2) all Defendants denied his requests for

personal hygiene items throughout his incarceration; (3) Hayslip, Paul, and Aemeont

put him in a cell in which part of the ceiling fell on him; (4) on one occasion, Perigo

denied him a dinner tray when the Jail was short on food; and (5) Hayslip, Paul, and

Aemeont fed him nutritionally inadequate meals consisting of cheese sandwiches and

pop tarts. The Supplemental R&R concluded that the claim for extended isolation

housing clears the PLRA screening hurdle and recommends that the Court deny the

remaining four. The Court agrees with the first recommendation and agrees with

almost all the second: the only distinction being that, unlike the Supplemental R&R,

the Court concludes that the personal-hygiene-item claim may proceed.

i. Isolation Housing

The Court agrees with the Supplemental R&R that O’Neill may proceed on his

individual-capacity conditions-of-confinement claim based on his extended stint in

isolation housing. (Doc. 22, #109–10). “[I]t is well documented that long periods of

solitary confinement can have devastating effects on the mental well-being of a

detainee.” United States v. Basciano, 369 F. Supp. 2d 344, 352 (E.D.N.Y. 2005) (citing

Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological

Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change

477, 531 (1997) (“Direct studies of the effects of prison isolation have documented a

wide range of harmful psychological effects[.] … There is not a single study of solitary

confinement wherein non-voluntary confinement that lasted for longer than 10 days

failed to result in negative psychological effects.”)). Alleging 264 days of isolation

housing is therefore enough to satisfy the objective component—substantial risk of

serious harm—at this stage. And by making an affirmative choice to place O’Neill in

extended isolation housing, Hayslip, Paul, and Aemeont acted “deliberately” in the

face of this risk (which should have been obvious to them as prison officials). That is

enough to satisfy the subjective component at this stage. O’Neill may therefore move

forward with his first conditions-of-confinement claim.

ii. Denial of Personal Hygiene Items

The Court disagrees, however, with the Supplemental R&R’s recommendation

that it dismiss O’Neill’s claims based on his being denied personal hygiene items.

(Doc. 22, #105–06, 109–10). “Conditions-of-confinement cases are highly fact-specific,

but one guiding principle is that the length of exposure to the conditions is often

paramount.” Lamb v. Howe, 677 F. App’x 204, 209 (6th Cir. 2017). “Short term

deprivations of toilet paper, towels, sheets, blankets, mattresses, toothpaste,

toothbrushes and the like do not rise to the level of a constitutional violation.” Gilland

v. Owens, 718 F. Supp. 665, 685 (W.D. Tenn. 1989). But the complete denial of

personal hygiene products for a long period of time can support a conditions-of-

confinement claim. Compare Flanory v. Bonn, 604 F.3d 249, 255–56 (6th Cir. 2010)

(holding that allegations that an inmate was deprived of toothpaste for 337 days and

experienced serious dental health problems were enough to state a claim in the

related Eighth Amendment context), with Siller v. Dean, 205 F.3d 1341, 2000 WL

145167, at *2 (6th Cir. 2000) (table) (holding that the denial of “access to a shower

and other (unspecified) personal hygiene items” for six days did not rise to the level

of an Eighth Amendment violation), and Crump v. Janz, No. 1:10-cv-583, 2010 WL

2854266, at *4–*5 (W.D. Mich. July 19, 2010) (holding that lack of hygiene items and

other personal property for 35 days did not establish an Eighth Amendment

violation).

O’Neill alleges that each Defendant denied all his requests for personal

hygiene items for his entire 264-day stay at the Adams County Jail. (Doc. 20, #83–84

(“At no time would any of the Defendants provide Plaintiff with sanitary eating

utensils or the ability to meet all hygiene needs, i.e., shaving, haircuts, tooth paste

[sic], toilet paper[,] etc.”)). That specifically implicates each Defendant. And the

length of that deprivation, which is much closer to the duration of the deprivation in

Flanory than those in Siller and Crump, suggests that he was at least potentially

exposed to a substantial risk of serious harms like dental health deterioration.

Moreover, the risk of such harms arising from extended deprivation of hygiene items

is so obvious that Defendants should have known about it. So O’Neill may move

forward with this claim.

iii. Cell Ceiling Collapse

Beyond that, though, the Supplemental R&R is correct that O’Neill has failed

to plead sufficient allegations for any other conditions-of-confinement claim. Start

with his allegation that the cell ceiling collapsed on him. As the Magistrate Judge

correctly observes, (Doc. 22, #106), the Third Amended Complaint never alleges that

anyone at the Jail knew or should have known that the ceiling was at risk of

collapsing. And without such allegations, O’Neill’s conditions-of-confinement claim

based on that event fails. Compare Hodge v. Beckstrom, No. 14-cv-174, 2020 WL

4516828, at *6 (E.D. Ky. Aug. 5, 2020) (“Defendants’ testimony clearly establishes

notice [as to the risk of the ceiling collapsing]. They have not refuted their own

testimony or presented any [contrary] evidence … . Viewing these facts in a light

most favorable to Hodge, … Hodge has properly alleged an 8th Amendment

claim … .”), with Bennett v. City of Philadelphia, No. 07-cv-2794, 2008 WL 4211701,

at *7 (E.D. Pa. Sept. 9, 2008) (“Even if the prison conditions were improperly

maintained and created a substantial risk of serious harm [when the prison shower

ceiling collapsed], plaintiff has not alleged that the individual defendants were aware

of the unsafe conditions and deliberately disregarded any potential problems.”). So

the Court dismisses the conditions-of-confinement claim based on the collapse of

O’Neill’s cell’s ceiling.

iv. Deprivation of a Single Meal

The Magistrate Judge also correctly concluded that O’Neill has not adequately

pleaded his fourth claim based on Defendants’ allegedly depriving him of one dinner.

(Doc. 22, #104). “[T]he first element of a condition-of-confinement claim requires that

the plaintiff show that he or she was subjected to a substantial risk of serious harm.

Denying [even] a few meals over an extended period will generally not suffice to state

a viable claim.” Assi v. Hanshaw, 625 F. Supp. 3d 722, 746 (S.D. Ohio 2022); cf.

Richmond v. Settles, 450 F. App’x 448, 456 (6th Cir. 2011) (holding that, in the related

Eighth Amendment context, “the withholding of meals, while it may result in some

discomfort to the prisoner,” does not amount to a constitutional violation when “the

prisoner continues to receive adequate nutrition”). Denying a single meal on a single

day, absent allegations that the deprivation harmed O’Neill’s health, is therefore not

enough to support a conditions-of-confinement claim.

v. Nutritionally Inadequate Meals

The Magistrate Judge is also correct that the fifth and final individual-capacity

conditions-of-confinement claim is a non-starter. (Doc. 22, #105). As O’Neill clarified

in his objections, he takes issue with the lack of variety in his meal trays. (Doc. 23,

#115 (“The food variety was the heart of Plaintiff’s complaint.”)). But “while Plaintiff

may wish the prison menu had more variety, prison food is not required to be tasty

or widely varied.” Balcar v. Smith, No. 3:16-cv-P428, 2017 WL 380931, at *3 (W.D.

Ky. Jan. 26, 2017); cf. Cunningham v. Jones, 567 F.2d 653, 659–60 (6th Cir. 1977)

(“[A] complaint about the preparation or quality of prison food … would generally be

far removed from Eighth Amendment concerns.”). “Indeed, the Sixth Circuit has held

that a diet of solely a food loaf [is not a constitutional violation] … when nutritional

and caloric requirements are met.” Balcar, 2017 WL 380931, at *3 (citing Payton-Bey

v. Vidor, 68 F.3d 475, 1995 WL 603241, at *1 (6th Cir. 1995) (table)).

O’Neill has not alleged that his health deteriorated because of his diet or that

the meal trays did not meet his daily caloric needs. “Thus, Plaintiff’s allegations do

not state a constitutional claim because the mere fact that Plaintiff may not have

received the types of food he desires does not mean that Plaintiff is denied sufficient

food on a daily basis or that he cannot maintain his health based on the diet provided

to him.” Id. The Court therefore dismisses O’Neill’s conditions-of-confinement claim

based on the alleged inadequately varied meal trays.

* * *

In short, of O’Neill’s five conditions-of-confinement claims, he has plausibly

alleged only the claims based on extended time in isolation housing and extended

denial of personal hygiene items. The Court therefore dismisses the other three

conditions-of-confinement claims. But it does so without prejudice because O’Neill

may be able to remedy the deficiencies by pleading additional factual allegations.

b. Deliberate-Indifference-to-Medical-Need Claims

The Court turns next to O’Neill’s deliberate-indifference-to-medical-need

claims. “Pretrial detainees have a right to adequate medical care under the

Fourteenth Amendment. An officer violates that right if that officer shows deliberate

indifference to a pretrial detainee’s serious medical needs.” Hyman v. Lewis, 27 F.4th

1233, 1237 (6th Cir. 2022) (cleaned up) (citing City of Revere v. Mass. Gen. Hosp., 463

U.S. 239, 244 (1983); Greene v. Crawford Cnty., 22 F.4th 593, 605 (6th Cir. 2022)).

“But there’s a bit of a problem in analyzing such claims. Since Brawner … changed

the traditional test for deliberate indifference claims, district courts have faced

conflicting guidance from the Sixth Circuit about the appropriate analytical

framework.” Campbell v. Riahi, No. 1:20-cv-678, 2023 WL 5979211, at *4 (S.D. Ohio

Sept. 13, 2023). More specifically, the Sixth Circuit has set forth two tests. Under one

framework, adopted in Trozzi v. Lake County, 29 F.4th 745 (6th Cir. 2022), a plaintiff

must show that “a prison official actually ‘knew that [the] failure to respond would

pose a serious risk to the pretrial detainee and ignored that risk.’” Campbell, 2023

WL 5979211, at *4 (quoting Trozzi, 29 F.4th at 757–58). Under the other, adopted in

Helphenstine v. Lewis County, 60 F.4th 305 (6th Cir. 2023), “‘should [have] known’ is

enough.” Campbell, 2023 WL 5979211, at *4 (quoting Helphenstine, 60 F.4th at 317,

and noting that Helphenstine rejected Trozzi as irreconcilable with Brawner and

found that Brawner controls under the prior panel rule). “Absent clarification, the

safest course is perhaps to analyze such claims under both standards, with fingers

crossed that they agree. Thankfully, here, they do.” Id. (footnote omitted).

Applying that framework, the Court agrees with the Supplemental R&R that

O’Neill may move forward with these deliberate-indifference claims, (Doc. 22, #110),

because all of them survive even the less plaintiff-friendly Trozzi standard.

Under Trozzi, “a plaintiff must satisfy three elements for an inadequate-

medical-care claim under the Fourteenth Amendment”: that (1) the detainee had an

“objectively serious medical need,” (2) “a reasonable officer at the scene (knowing

what the particular jail official knew at the time of the incident) would have

understood that the detainee’s medical needs subjected the detainee to an excessive

risk of harm,” and (3) “a prison official actually knew that [the] failure to respond

would pose a serious risk to the pretrial detainee and ignored that risk.” Trozzi, 29

F.4th at 757–58. As explained below, here O’Neill’s deliberate-indifference claims

meet this standard.

i. The Finger Injury

Start with the injury to O’Neill’s finger. Recall that Jane Doe Nurse examined

the finger, which was “purplish dark blue and swollen with puss [sic],” and returned

O’Neill to his cell without providing any care. (Doc. 20, #82–83). Shamblin then gave

O’Neill a fork and hand sanitizer and told him to “take care of it how you would in

your country.” (Id. at #83).

An extremely discolored, swollen finger is obviously infected and may be

seriously injured, thus constituting an objectively serious medical need, which

plausibly suggests O’Neill could show the first prong. Howell v. NaphCare, Inc., 67

F.4th 302, 311 (6th Cir. 2023) (“An objectively serious medical need includes

conditions that have been diagnosed by a physician as mandating treatment or that

are so obvious that even a lay person would easily recognize the necessity for a

doctor’s attention.” (cleaned up)); cf. Oliver v. Cnty. of Gregory, No. 3:14-cv-3013, 2016

WL 958171, at *7 (D.S.D. Mar. 8, 2016) (“Oliver’s complaints of pain, requests for

medical attention, refusal or reluctance to bear weight on his right leg and ankle, and

presence of swelling … could cause a reasonable jury to find that Oliver’s ankle

condition was sufficiently obvious that a layperson would easily recognize the need

for medical treatment.”).

As to the second prong, the Court can reasonably infer that someone who

directly observed a finger in that state would know that leaving such an injury

untreated had the potential to cause serious health problems—thus satisfying the

second prong. Yet Jane Doe Nurse, who observed the finger, ignored that risk (if it in

fact existed) and declined to provide any care. O’Neill has therefore adequately

pleaded (at least at this stage) his individual-capacity deliberate-indifference claims

based on his injured finger as to Jane Doe Nurse.

The same ends up being true of his claim against Shamblin—though the route

is a little more circuitous. Shamblin came to O’Neill’s cell “[l]ater that same day,”

(Doc. 20, #83)—i.e., after Jane Doe Nurse had seen O’Neill—and, presumably, he

would have had access to information about Jane Doe Nurse’s medical assessment of

O’Neill’s finger. That presents a bit of a problem for O’Neill. Whether measured under

Trozzi or Helphenstine, “a non-medically trained officer does not act with deliberate

indifference to an inmate’s medical needs when he reasonably deferred to a medical

professional’s opinions.” Greene, 22 F.4th at 608 (cleaned up). True, “[s]uch

deference … may not be absolute or indefinite, particularly when officers are tasked

with monitoring a detainee.” Howell, 67 F.4th at 315; see also Stojcevski v. Macomb

Cnty., 827 F. App’x 515, 522 (6th Cir. 2020) (“As one of our unpublished cases

summarizes things, an officer who seeks out the opinion of a doctor is generally

entitled to rely on a reasonably specific medical opinion for a reasonable period of

time after it is issued, absent circumstances such as the onset of new and alarming

symptoms.” (cleaned up)). But as a general matter, Shamblin could not be liable on a

deliberate-indifference theory merely for following Jane Doe’s no-treatment advice.

Here, though, based on O’Neill’s allegations, and drawing all reasonable

inferences in his favor, Shamblin did not merely defer to Jane Doe Nurse’s medical

opinion. Rather, he suggested an independent course of medical action—consisting of

a fork and hand sanitizer—that was inconsistent with the nurse’s apparent

instructions to O’Neill to let the finger injury resolve on its own. If that is true, it at

least plausibly suggests that Shamblin may not be able to rely on an argument that

he was merely following Jane Doe Nurse’s medical advice as a basis for escaping

liability on O’Neill’s deliberate-indifference claim. Of course, any claim based on

Shamblin’s alleged medical advice may have problems of proof at multiple levels. But

for present purposes, those allegations are enough, if just barely, for this claim to

clear the PLRA screening hurdle.

ii. The Head Injury

Both O’Neill’s claims based on his head injury survive, too. He alleges that a

9-inch by 2-inch chunk of the ceiling in his cell, weighing 8–9 pounds, fell on his head,

subsequently resulting in his complaining to medical staff of memory loss and balance

issues. (Doc. 20, #84). Like an infected or broken finger, a potential head injury

followed by problems with memory loss and balance is a serious medical need. That

satisfies the first prong at this stage. Cf. Durley v. Leberak, No. 22-cv-706, 2024 WL

728246, at *4 (E.D. Wis. Feb. 22, 2024) (“Durley alleges that he fell, hit his head on

the door of his cell, and experienced headaches, migraines, and nosebleeds as a result.

A reasonable factfinder could conclude that Durley’s head injury and symptoms

constituted an objectively serious medical need.”). And it is reasonable to infer that a

reasonable person, when told (as Big John and Jane Doe Nurse were) that a detainee

had been struck in the head by an 8–9-pound cement object, would conclude that the

person was at risk of harm to his health. Despite being made aware of this injury, Big

John merely told O’Neill to be grateful the rebar had not also fallen on his head. (Doc.

20, #84). And when O’Neill took it upon himself to seek medical treatment, Jane Doe

Nurse opted not to treat the injury or to place O’Neill under observation. (Id.

(“Plaintiff was denied medical attention by Unknown Jane Doe ‘Nurse’ at that

time.”)). That’s it. Neither took any further action to investigate potential injuries or

to treat him.

Moreover, the allegations in the Third Amended Complaint do not suggest that

Big John, who “didn’t document the incident or file a report of damage,” (id.),

arranged for O’Neill to see any medical care providers. Nor do they suggest that Big

John learned that Jane Doe Nurse saw O’Neill and that she decided that no treatment

was necessary. Accordingly, Big John cannot rely on (1) having sought medical

attention for O’Neill and (2) acting consistently with that medical advice to insulate

him from a deliberate-indifference claim. Rather, the allegations here raise a

plausible inference that Jane Doe Nurse and Big John independently decided to

ignore the risk to O’Neill, which if true plausibly suggests he may be able to satisfy

the third prong of the deliberate-indifference standard. So O’Neill has also adequately

pleaded his individual-capacity deliberate-indifference claim based on his head injury

against both Big John and Jane Doe Nurse.

Again, it may well be the case that Jane Doe Nurse was correct not to provide

further treatment or even that, based on additional facts, Big John acted

appropriately in not arranging for O’Neill to see a medical provider. But the factual

allegations in the Third Amended Complaint, which are all that the Court can

consider at this juncture, create a plausible inference that both of these Defendants

were deliberately indifferent to a serious risk of harm.

c. First Amendment Claims

That brings the Court to O’Neill’s First Amendment claims. The First

Amendment provides that “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof ... .” U.S. Const. amend. I. The

Fourteenth Amendment renders the First Amendment applicable to the States.

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). And prisoners retain First

Amendment free exercise rights despite their incarcerated status. Walker v. Mintzes,

771 F.2d 920, 929 (6th Cir.1985). But “the circumstances of prison life may require

some restrictions on prisoners’ exercise of their religious beliefs,” thus requiring a

court to “balance the prisoners’ constitutionally protected interest in the free exercise

of their religious beliefs against the state’s legitimate interests in operating its

prisons.” Id.

“A prisoner alleging … violat[ions of] his religious beliefs must show that the

belief or practice … is sincerely held. Only after a prison inmate shows a sincere belief

that his or her religion requires the practice at issue does the court move on to

determining whether the prison’s actions restricting the practice are valid.” Barhite

v. Caruso, 377 F. App’x 508, 510 (6th Cir. 2010) (cleaned up). Assuming the prisoner

clears the sincerely-held-belief hurdle, when “an inmate challenges prison policies

under the Free Exercise Clause, Supreme Court precedent instructs us to follow the

standard formulated in Turner v. Safley, 482 U.S. 78 (1987).” Maye v. Klee, 915 F.3d

1076, 1083 (6th Cir. 2019). Under that standard, even if “a prison regulation impinges

on inmates’ constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” Id. (quoting O’Lone v. Est. of Shabazz, 482 U.S. 342,

349 (1987), which in turn quotes Turner, 482 U.S. at 89).

O’Neill raises three First Amendment claims: one for denying him access to a

Qur’an and Islamic services, one for including items containing pork on his food tray,

and one for forcing him to say he would convert to Christianity to receive adequate

meal trays. Reading the allegations in the light most favorable to O’Neill, and

therefore determining that O’Neill’s Muslim beliefs are sincerely held, the Court

agrees with the Supplemental R&R that the first and third claims clear the PLRA

screening hurdle. (Doc. 22, #110). But it disagrees with the Supplemental R&R as to

the second, (id.), and dismisses the food tray claims.

i. Denial of a Qur’an and Islamic Services

O’Neill alleges that Hayslip, Paul, and Aemeont denied him access to a Qur’an

and Islamic services. More specifically, he alleges that Hayslip “denied [him] access

to a Qur[’]an and Islamic religious services,” and that Hayslip, Paul, and Aemeont

told him “that he [w]ould [] be permitted to attend [only] Christian services.” (Doc.

20, #84).

There are two ways of reading O’Neill’s allegation that Hayslip denied him

access to a Qur’an. One is that the Jail merely declined to provide a Qur’an for

O’Neill’s use. The other is that it prohibited him from using any Qur’an, including his

own personal property. The former is a non-starter. Cf. Cutter v. Wilkinson, 544 U.S.

709, 720 n.8 (“Directed at obstructions institutional arrangements place on religious

observances, RLUIPA[, a statute that expands prisoners’ First Amendment rights,]

does not require a State to pay for an inmate’s devotional accessories.”). But the

latter—an outright prohibition on his accessing a Qur’an—is enough to state a claim

at this stage. See Martinaj v. Uhler, No. 9:18-cv-257, 2023 WL 2984449, at *19

(N.D.N.Y. Mar. 13, 2023) (“Refusing to provide Toland with a Quran for the eighteen-

day period that he spent at Upstate would constitute a substantial burden on Toland’s

free exercise rights.” (collecting cases)). Because the Court must construe O’Neill’s

pro se pleadings favorably by drawing reasonable inferences in his favor at this stage,

Keene Grp., 998 F.3d at 310, it determines that O’Neill has adequately pleaded his

claim for denial of access to a Qur’an.

O’Neill’s allegations that Hayslip, Paul, and Aemeont forbade him from

attending Islamic religious services and told him he had to attend Christian services

are also sufficient to state a claim for relief at this stage of the litigation. See JCG v.

Ercole, No. 11-cv-6844, 2014 WL 1630815, at *23 (S.D.N.Y. Apr. 24, 2014), (“Plaintiff

asserts that Defendant Chill deliberately denied him his right to attend

services … for his entire stay at Green Haven. … [T]his is sufficient, albeit barely, at

the pleading stage to allege a substantial burden on his beliefs in that he was

completely denied any occasion to worship or [to] practice his religion … .”), report

and recommendation adopted by 2014 WL 2769120 (S.D.N.Y. June 18, 2014).

Defendants may later be able to contest O’Neill’s factual allegations or to

explain how any restrictions they imposed on him are “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89. But O’Neill’s allegations are

enough for his First Amendment claims based on Defendants’ denying him access to

a Qur’an and Islamic services to clear the PLRA screening hurdle.

ii. Meal Contents

In contrast, O’Neill’s allegations about the contents of his meals fall short.

“[P]rison administrators must provide an adequate diet without violating the

inmate’s religious dietary restrictions. For the inmate, this is essentially a

constitutional right not to eat the offending food item. If the prisoner’s diet, as

modified, is sufficient to sustain the prisoner in good health, no constitutional right

has been violated.” Alexander v. Carrick, 31 F. App’x 176, 179 (6th Cir. 2002)

(collecting cases). O’Neill alleges that Hayslip, Aemeont, and Paul “altered [his meal]

tray to [include just] cheese sandwiches and pop tarts (which contain pork).” (Doc. 20,

#82). Assuming pop tarts do, in fact, contain pork, the question is whether the rest of

O’Neill’s diet is enough to sustain him in good health. And he has offered no

allegations that it was not, or that he suffered health harms from that diet. So this

claim does not clear the PLRA screening hurdle. But because O’Neill may be able to

remedy this deficiency by pleading additional factual allegations, the Court dismisses

it without prejudice.

iii. The Conversion Demand

Finally, the Court considers O’Neill’s claim arising from Hayslip’s and Paul’s

forcing him to sign a statement that he would convert to Christianity. (Id. at #82).

Forcing someone to adopt a religion—i.e., “to profess a belief or disbelief in any

religion”—is a clear First Amendment violation. Everson v. Bd. of Ed. of Ewing Twp.,

330 U.S. 1, 15 (1947); cf. White v. Hamilton Cnty., No. 23-5384, 2024 WL 1257508, at

*2 (6th Cir. Mar. 25, 2024) (finding that there was a genuine factual dispute as to

whether a state trooper forced a driver to agree to be baptized during a traffic stop,

such that the baptism amounted to religious coercion). O’Neill’s final First

Amendment claim therefore also clears the PLRA screening hurdle.

3. Sheriff Rogers

Last, the Court considers O’Neill’s remaining allegations about Sheriff Rogers.

On this front, the Court agrees with the Supplemental R&R that all the individual-

capacity claims against Rogers, other than the claim for denial of personal hygiene

items, fail to state a claim on which relief can be granted. (Doc. 22, #103–04). (As

discussed above, see supra Section B.2.a.ii, the personal-hygiene-items claim can

proceed against all Defendants in their individual capacities.)

The Third Amended Complaint alleges that Rogers “is responsible for his

employees, the Jail, and the administration of the Jail conditions, regarding safety

and sanitation,” and that he was “negligent, reckless, wanton, and indifferent” in

those responsibilities. (Doc. 20, #80). Both the Third Amended Complaint and

O’Neill’s Objections to the Supplemental R&R also conclusorily allege that Rogers

personally knew about Jail conditions. (Id.; Doc. 23, #113). But O’Neill never alleges

that Rogers “did or said anything [specific], or took any [specific] action, or failed to

take any [specific] action,” Polachek v. Roberts, No. 1:22-cv-742, 2023 WL 6348388, at

*2 (S.D. Ohio Sept. 28, 2023), beyond denying O’Neill’s request for personal hygiene

items, which the Court already discussed.

“That matters because the Sixth Circuit has consistently held that damage

claims against government officials arising from alleged violations of constitutional

rights must allege, with particularity, facts that demonstrate what each defendant

did that violated the asserted constitutional right.” Id. (cleaned up). Moreover,

because vicarious liability is not a viable legal theory under § 1983, Everson v. Leis,

556 F.3d 484, 495 (6th Cir. 2009), O’Neill cannot sue Rogers merely based on Rogers’

supervising Jail staff. Rather, “[t]o bring a successful suit against [Rogers] as a

supervisor, [O’Neill] would need to allege that he ‘at least implicitly authorized,

approved or knowingly acquiesced in the unconstitutional conduct of the offending

subordinate.’” Polachek, 2023 WL 6348388, at *2 (quoting Crawford v. Tilley, 15 F.4th

752, 761 (6th Cir. 2021)). Conclusorily alleging personal knowledge is insufficient.

Accordingly, even if Rogers were aware of conditions at the Jail, O’Neill cannot move

forward with any individual-capacity claims against him—other than the claim based

on deprivation of personal hygiene items, as mentioned above.

CONCLUSION

For the reasons detailed above, the Court REJECTS AS MOOT the R&R

(Doc. 12), OVERRULES O’Neill’s Objections to the Supplemental R&R (Doc. 23),

and ADOPTS IN PART the Supplemental R&R (Doc. 22). As a result, the Court

DISMISSES WITHOUT PREJUDICE all of O’Neill’s official-capacity claims and

his individual-capacity conditions-of-confinement claims based on his cell ceiling’s

collapse, his being denied a single meal tray, and his lacking nutritious food options

as he was given meal trays of just cheese sandwiches and pop tarts. The Court also

DISMISSES WITHOUT PREJUDICE ONeill’s individual-capacity First

Amendment claims based on the contents of his meal tray.

That means O’Neill may proceed on the following claims: (1) the individual-

capacity conditions-of-confinement claims against Hayslip, Paul, and Aemeont based

on extended placement in isolation housing; (2) the individual-capacity conditions-of-

confinement claims against all Defendants for their extended denial of personal

hygiene items; (8) the individual-capacity deliberate-indifference-to-medical-need

claims against Jane Doe Nurse and Shamblin for the injury to O’Neill’s finger; (4) the

individual-capacity deliberate-indifference-to-medical-need claims against Big John

and Jane Doe Nurse for the injury to O’Neill’s head; and (5) the individual-capacity

First Amendment claims against Hayslip, Paul, and Aemeont based on those

Defendants’ (a) denying O’Neill access to a Qur’an and Islamic religious services and

(b) forcing him to state he would convert to Christianity as a condition of receiving

adequate meal trays.

SO ORDERED.

August 12, 2024 :

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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