Robinson v. Butler

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARTIN ROBINSON, ) Case No. 3:23-cv-01611

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) Jennifer Dowdell Armstrong

LONNIE BUTLER, et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiff Martin Robinson, an Ohio prisoner incarcerated at the Toledo

Correctional Institution, filed this action without a lawyer against 71 Defendants,

including prison staff, employees of the Ohio Department of Rehabilitation and

Correction, the American Correctional Association, Ohio Governor Mike DeWine,

Ohio Attorney General Dave Yost, a federal district court judge and a federal

magistrate judge from the Southern District of Ohio, and the Ohio Supreme Court.

(ECF No. 1.) He alleges violations of his federal civil rights under 42 U.S.C. § 1983

for incidents that allegedly occurred during his previous incarcerations at London

Correctional Institution, Warren Correctional Institution, and Madison Correctional

Institution, as well as his current incarceration in Toledo. Plaintiff seeks injunctive

and monetary relief.

Previously, the Court severed Plaintiff’s claims relating to the London,

Warren, and Madison Correctional Institutions and transferred them to the United

States District Court for the Southern District of Ohio, where those institutions are

located, leaving the claims in this action that arise from Plaintiff’s confinement at the

Toledo Correctional Institution. (ECF No. 8.) Further, the Court dismissed Plaintiff’s

claims against several Defendants. After that ruling, this action is proceeding

against: the Ohio Department of Rehabilitation and Correction; Annette Chambers-

Smith; Chief Inspector Chris Lambert; Assistant Director Stuart Hudson; Major

Brown; Warden K. Henderson; Deputy Warden Denman; Dr. Porter; Dr. De La Cruz;

Ms. K; Regional Director E. Sheldon; and the American Correctional Association.

(Id., PageID #89.) These Defendants filed two separate motions to dismiss: the Ohio

Attorney General filed one on behalf of the Ohio Department of Rehabilitation and

Correction and its officers and employees (ECF No. 19), and the American

Correctional Association filed another (ECF No. 24). In this ruling, the Court takes

up both motions.

STATEMENT OF FACTS

On Defendants’ motions to dismiss, the complaint alleges the following facts,

which the Court accepts as true and construes in the light most favorable to Plaintiff

as the non-moving party, as it must in the present procedural posture.

A. The Alleged Incidents at Toledo Correctional

Currently, Plaintiff Martin Robinson is incarcerated at the Toledo Correctional

Institution in Toledo, Ohio. (ECF No. 1, PageID #2.) Previously, he worked as a

correctional officer with the Ohio Department of Rehabilitation and Correction. (Id.,

¶ 2, PageID #3.) He claims that he “is a whistleblower being illegally detained or

imprisoned by his former employer.” (Id., ¶ 1, PageID #2.) According to the

complaint, the prison’s surveillance cameras captured the majority of the incidents

outlined in the complaint (id., ¶ 35, PageID #14), which the Court groups by their

common themes.

A.1. Failure to Intervene

Since August 2019, “different prison officials started informing other inmates

that Mr. Robinson used to be a former Correctional Officer,” allegedly putting his life

in danger. (Id., ¶ 2, PageID #2–3.) He claims that these unidentified prison officials

told him “that one day he would be killed.” (Id., ¶ 2, PageID #3.) Mr. Robinson alleges

that he requested to be segregated from the other inmates and put on surveillance so

that “the attacks and false conduct reports would stop.” (Id.)

Mr. Robinson claims that he contacted Annette Chambers-Smith, the Director

of the Ohio Department of Rehabilitation and Correction, and other senior

Department staff (Assistant Director Stuart Hudson, and Chief Inspector Chris

Lambert) multiple times to make them aware of the threats against him. (Id., ¶ 3,

PageID #3.) Mr. Robinson alleges that they failed to intervene, allowing these attacks

on Mr. Robinson to continue. (Id., ¶ 4, PageID #3.) Further, he alleges that he made

the warden aware “of staff on inmate assault” and requested the filing of a formal

criminal complaint. (Id., ¶ *1 21, PageID #11.)

A.2. Deliberate Indifference to Medical Needs

According to Mr. Robinson, “Ms. K”—who Defendants identified as Hannah

Kroggel, a health care administrator at the institution—was made aware of the

permanent disabilities Mr. Robinson suffered that made it difficult for him to use the

stairs. (Id., ¶ 20, PageID #11.) Despite this knowledge, and although the facility has

elevators, Ms. Kroggel allegedly told Mr. Robinson to “use the stairs.” (Id.) After

months of allegedly attending doctors’ appointments to address his difficulty using

stairs due to his permanent disabilities, Mr. Robinson claims he fell down the stairs

in May 2022 and fell in the day room in June 2022—the first time while on his way

to recreation and the second time while getting his lunch tray. (Id.) According to

Mr. Robinson, Defendant Matthew Denman, Deputy Warden of Special Services, who

was the medical supervisor at the time, was made aware of what Mr. Robinson

describes as “deliberate indifference and improper health care,” but failed to “properly

supervise his subordinates according to the employee code of conduct and contractual

agreements” to ensure that proper care was provided to Mr. Robinson. (Id.) Further,

Mr. Robinson alleges that unit management denied his request to be housed in a

handicapped cell. (Id., ¶ 26, PageID #12.)

Mr. Robinson alleges that the institution’s mental health providers removed

him from their caseload and has not provided him with assistance. (Id., ¶ 22, PageID

#11.) He claims that Defendant Dr. De La Cruz refused to give him proper health

care, such as accepting his requests or recommendations to see a specialist,

prescribing pain medication, scheduling him for a round trip outside hospital

appointment, and following proper fall protocol. (Id., ¶ 23, PageID #11–12.)

Mr. Robinson claims that Dr. De La Cruz told him that she would recommend

physical therapy and would not take his walker from him for 30 days, despite

allegedly previously telling him that they did not offer physical therapy or referrals

to specialists. (Id., ¶ 27, PageID #12.) According to Mr. Robinson, his attempts to get

approval for an emotional support animal and for a prescription for medical

marijuana have failed, even though he claims that he has more than one medical or

psychiatric diagnosis that qualifies him for such support. (Id., ¶ 34, PageID #13–14.)

A.3. Excessive Force and Theft of Property

On an unknown date, Mr. Robinson alleges that he was forced to submit to a

strip search without cause. (Id., ¶ 19, PageID #10–11.) Defendant Major Brown

allegedly threatened to use force if Mr. Robinson refused to submit to the search,

including the use of a “pepper ball gun.” (Id.) Subsequently, when Mr. Robinson

refused to submit to the search, unnamed individuals allegedly pushed him in the

chest or shoulder. (Id., ¶ 19, PageID #11.)

On July 13, 2022, Mr. Robinson alleges that he was unnecessarily removed

from his cell by use of excessive force. (Id., ¶ 21, PageID #11.) He claims that during

a period while he was “in the hole” and “on hunger strike,” prison staff lost or stole

some of his property. (Id.) When he notified unit management about the loss of his

property, both orally and in writing, he alleges that they refused to document the

incident, return the property, or investigate where or what happened to his property.

(Id.) According to Mr. Robinson, Toledo Correctional “must obtain a court order to

destroy any property labeled as contraband.” (Id.) Mr. Robinson alleges that the

institution took or denied him his property improperly—on the mistaken belief that

Toledo Correctional is a maximum security prison, “but we are not maximum security

level inmates.” (Id., ¶ 30, PageID #12.)

A.4. Retaliation

Mr. Robinson claims that he is considered indigent pursuant to regulations

that govern the Ohio Department of Rehabilitation and Correction. (Id., ¶ 32, PageID

#13.) He alleges that the cashier’s office denied his indigency claim because

Mr. Robinson received $17.00 per month, which is over the designated twelve-dollar

amount. (Id.) Because Mr. Robinson believes that the cashier incorrectly denied his

status as indigent, he filed a grievance and claims that the Chief Inspector’s Office

inappropriately responded to the grievance. (Id.) On June 14, 2023, the Chief

Inspector’s Officer allegedly closed out the complaint, which Mr. Robinson claims was

inappropriate. (Id.)

In violation of the Department’s regulations and policies, Mr. Robinson alleges

that Chief Inspector Lambert refused to print paper copies of “inappropriate [and]

false” responses by staff regarding any informal complaints Mr. Robinson made. (Id.,

¶ 33, PageID #13.) Mr. Robinson claims that he was suspended twice for 90 days

each from filing any more grievances, an action which Mr. Robinson claims

constitutes retaliation for his grievances. (Id.)

Finally, Mr. Robinson lists additional incidents, which the Court collects under

this heading, though some might more appropriately be styled as allegations of

general violations of the Department’s policies and procedures:

First, on April 19, 2023, Edward Sheldon, a regional director of the Ohio

Department of Rehabilitation and Correction, visited Toledo Correctional. (Id., ¶ 29,

PageID #12.) When Mr. Robinson raised complaints, Mr. Sheldon allegedly

responded, “I’m not here for your ass,” which Mr. Robinson claims was inappropriate

and unprofessional. (Id.)

Second, according to the complaint, on or about January 5, 2020, the Ohio

Department of Rehabilitation and Correction permanently banned a woman he

identifies as Maiya McCoy from visiting him. (Id., ¶ 18, PageID #10.) Although he

was not at Toledo Correctional at the time, Mr. Robinson alleges that Toledo

Correctional “refuses to lift the ban and reinstate Ms. McCoy as an approved visitor”

or even to allow him to have video visits with her. (Id.)

Third, Mr. Robinson alleges that Deputy Warden Denman did not allow him

to attempt to further his education by studying to receive another college or master’s

degree with Ashland University. (Id., ¶ 31, PageID #13.) He claims that the Ohio

Department of Rehabilitation and Correction refused to accept his high school

diploma and bachelor’s degree as proof of his academic achievements. (Id.)

B. The American Correctional Association’s Audit

Mr. Robinson alleges that Toledo Correctional had multiple health and safety

violations, but still passed an audit that the American Correctional Association

performed with 100% compliance on mandatory standards and 98.5% compliance on

non-mandatory standards. (Id., ¶ 24, PageID #12.) He claims that the Association

should be held liable for fraud and “should be made to look at the number of suicides

or deaths of incarcerated” at the institution. (Id., ¶ 25, PageID #12.) The American

Correctional Association is a nongovernmental corporation. (ECF No. 17.) Although

the Court’s Standing Order requires the filing of an answer, the American

Correctional Association failed to do so. It presents additional factual background in

its motion to dismiss, which the Court disregards in the current procedural posture,

which requires that the Court take Plaintiff’s allegations as true.

STATEMENT OF THE CASE

On February 17, 2021, Plaintiff filed a prior civil rights complaint relating to

the conditions of his confinement at the London Correctional Institution, Warren

Correctional Institution, and Madison Correctional Institution. See Robinson v.

Butler, No. 1:21-cv-382 (N.D. Ohio) (“Robinson I”). The Court transferred that action

to the Southern District of Ohio, which dismissed it for failure to prosecute. Robinson

v. Butler, No. 2:21-cv-774, 2022 WL 1487065, at *1 (S.D. Ohio May 11, 2022).

Mr. Robinson also failed to prosecute his appeal from that dismissal. See Robinson v.

Butler, No. 22-351, 2023 WL 3868660, at *1 (6th Cir. Apr. 4, 2023).

On August 17, 2023, Plaintiff filed this pro se complaint (“Robinson II”), raising

claims against each Defendant in both their individual and official capacities under

42 U.S.C. § 1983, and noting that this case might be a refiling of Robinson I. (ECF

No. 1; ECF No. 1-1.) Plaintiff’s complaint in Robinson II includes additional

allegations regarding his current incarceration at the Toledo Correctional Institution.

(ECF No. 1, ¶¶ 18–36, PageID #10–14.)

On January 2, 2024, the Court severed Plaintiff’s claims concerning the

conditions of his confinement at London Correctional, Warren Correctional, and

Madison Correctional and transferred them to the Southern District of Ohio. (ECF

No. 8, PageID #80–81.) Also, the Court dismissed Plaintiff’s claims against certain

Defendants. (Id.) As a result, this action only involves Plaintiff’s claims concerning

the conditions of his confinement at Toledo Correctional. (Id., PageID #89.) Of those

Defendants who remain in this case, the State Defendants and the American

Correctional Association separately moved to dismiss. (ECF No. 19; ECF No. 24.)

Plaintiff did not respond to either motion, though he made other filings since then.

ANALYSIS

Under Rule 12(b)(6), a court may dismiss a complaint if it fails to state a claim

on which a court may grant relief. Fed. R. Civ. P. 12(b)(6). A motion under Rule

12(b)(6) tests “the plaintiff’s cause of action as stated in the complaint,” and is “not a

challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d

950, 958–59 (6th Cir. 2005). A complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is plausible where “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). To survive a motion to

dismiss, a complaint must “raise a right to relief above the speculative level” into the

“realm of plausible liability.” Twombly, 550 U.S. at 555, 557 n.5.

On a motion to dismiss, the Court construes factual allegations in the light

most favorable to the plaintiff, accepts them as true, and draws all reasonable

inferences in the plaintiff’s favor. Wilburn v. United States, 616 F. App’x 848, 852

(6th Cir. 2015) (citing Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). But

a pleading must offer more than mere “labels and conclusions,” and “a formulaic

recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555). Nor is a court required to accept “[c]onclusory

allegations or legal conclusions masquerading as factual allegations.” Eidson v.

Tennessee Dep’t of Child.’s Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citing Twombly,

550 U.S. at 544).

Therefore, the Court must distinguish between “well-pled factual allegations,”

which must be treated as true, and “naked assertions,” which need not be. Iqbal, 556

U.S. at 678 (cleaned up); see also, e.g., Center for Bio-Ethical Reform, Inc. v.

Napolitano, 648 F.3d 365, 375 (6th Cir. 2011) (determining that because some of the

plaintiff’s factual allegations were not well-pled, their conclusory nature disentitled

them to the presumption of truth). A plaintiff need not include detailed factual

allegations, but must provide more than “an unadorned, the-Defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. at 678. Rule 8 “does not unlock the doors of

discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.

Although the pleadings and documents pro se litigants file are liberally

construed and held to less stringent standards than the formal pleadings of lawyers,

Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004), pro se litigants are not exempt

from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891

F.2d 591, 594 (6th Cir. 1989). Even a pro se complaint must “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” to

avoid dismissal. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

I. The State Defendants’ Motion to Dismiss

On behalf of the current and former officers and employees of the Ohio

Department of Corrections, the State of Ohio moves to dismiss, arguing that (1) the

statute of limitations bars any of Plaintiff’s claims which accrued before August 17,

2021; and (2) Plaintiff fails to state a claim for relief on any of his claims. (ECF

No. 19, PageID #292–98.) The Court addresses each argument in turn.

I.A. Statute of Limitations

Courts may grant motions to dismiss on the grounds of an applicable statute

of limitations only if “the allegations in the complaint affirmatively show that the

claim is time-barred.” Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 698 (6th Cir.

2022) (quoting Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir.

2013)). Section 1983 itself does not provide a statute of limitations. In such

circumstances, federal courts borrow the applicable limitations period from the most

analogous one available under State law. See Owens v. Okure, 488 U.S. 235, 249–50

(1989). Here, the most closely analogous limitations period under Ohio law is the

general two-year limitations period for bringing a tort action. See Ohio Rev. Code

§ 2305.10; see Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc).

When a cause of action under Section 1983 accrues presents “a question of

federal law that is not resolved by reference to state law.” Wallace v. Kato, 549 U.S.

384, 388 (2007). In Wallace, the Supreme Court recognized “the standard rule that

accrual occurs when the plaintiff has a complete and present cause of action . . . that

is, when the plaintiff can file suit and obtain relief.” Id. (quoting Bay Area Laundry

& Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201

(1997)) (cleaned up).

Ignoring the severance of the claims which limits the scope of this lawsuit,

Defendants direct most of their timeliness argument to incidents occurring at the

London, Warren, and Madison Correctional Institutions. (ECF No. 19, PageID #292.)

Relating to Toledo Correctional in particular, Defendants address a single

allegation—Mr. Robinson alleges that Toledo Correctional “refuses to lift” a ban on

visits from Maiya McCoy dating to June 5, 2020. (ECF No. 1, ¶ 18, PageID #10.) If

this claim challenged the ban directly, the Court would agree that it is untimely

because it predates the filing of this action by more than two years. However,

Mr. Robinson alleges that Toledo Correctional refuses to lift that ban. His complaint

challenges the conduct of his present institution. He does not identify the first date

on which Toledo Correctional refused to lift the ban. If that refusal predates August

17, 2021, it is untimely. But not if it came later. In the present procedural posture,

in which the Court must construe the complaint in Plaintiff’s favor, and in light of

the rule that a court may dismiss based on a statute of limitations only where the

complaint is clearly time-barred, the Court cannot say that Defendants clearly

establish the untimeliness of this claim.

II.B. Plaintiff’s Section 1983 Claims

Plaintiff alleges that the State Defendants are liable in their official and

individual capacities under Section 1983 for alleged violations of his First, Fourth,

Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (ECF No. 1, ¶¶ 1, 4 & 18,

PageID #1–3, 10 & 16.) Plaintiff alleges several of these constitutional violations

generally at the beginning and end of his complaint without providing much of a

connection between the incidents at Toledo Correctional he details and the violations

of his rights he claims. Nonetheless, the Court construes Plaintiff’s pro se complaint

liberally and attempts to identify the constitutional claims at issue. See Martin, 391

F.3d at 712.

To state a claim under Section 1983, Plaintiff must allege: (1) “a right secured

by the United States Constitution;” and (2) “the deprivation of that right;” (3) “by a

person acting under color of state law.” Troutman v. Louisville Metro Dep’t of Corr.,

979 F.3d 472, 482 (6th Cir. 2020) (quoting Watkins v. City of Battle Creek, 273 F.3d

682, 685 (6th Cir. 2001) (abrogated on other grounds)). Defendants argue that

Plaintiff fails to state a claim on which relief can be granted for all claims against

them. (ECF No. 19, PageID #292–98.)

II.B.1. Supervisory Liability

To state a claim against a governmental official in his individual-capacity, “a

complaint must allege that the defendants were personally involved in the alleged

deprivation of federal rights.” Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir.

2002). “[A] supervisor cannot be held liable simply because he or she was charged

with overseeing a subordinate who violated the constitutional rights of another.”

Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016). In other words, a

supervisor or other governmental official is not vicariously liable for the violations of

a person’s civil rights that another commits. To state a claim under Section 1983 for

the violation of a civil right, “a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the

Constitution.” Iqbal, 556 U.S. at 676. Liability must be based on each defendant’s

own “active unconstitutional behavior.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th

Cir. 1999). The plaintiff must allege facts suggesting that each defendant “did more

than play a passive role in the alleged violation or showed mere tacit approval of the

[challenged action].” Id.

At the very least, the individual defendant must have “implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct of the offending

officers.” Essex v. County of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013) (quoting

Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)). A defendant must have

“encouraged the specific incident of misconduct or in some other way directly

participated in it.” Id. at 355 (quoting Phillips, 534 F.3d at 543). To prevail on an

individual supervisory liability claim under Section 1983, a plaintiff must show that

“the supervisor encouraged the specific incident of misconduct or in some other way

directly participated in it.” Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th Cir.

1995) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). “[A]

supervisor’s failure to act, without more, is insufficient to establish supervisory

liability.” Hollis v. Erdos, 480 F. Supp. 3d 823, 833 (S.D. Ohio 2020) (citing Peatross,

818 F.3d at 241). Mere failure to act cannot establish individual liability. Essex, 518

F. App’x at 355 (6th Cir. 2013) (citing Gregory v. City of Louisville, 444 F.3d 725, 751

(6th Cir. 2006)).

Several of Plaintiff’s claims fail to establish whether various Defendants who

are officers or employees of the Ohio Department of Rehabilitation and Correction

played any personal role in the alleged violations of Mr. Robinson’s civil rights.

Plaintiff alleges that Ms. Chambers-Smith, the Department’s Director, Assistant

Director Hudson, and Chief Inspector Lambert “breached their duty” under 18 U.S.C.

§ 242 and 42 U.S.C. § 1983 after they “were contacted many times and made aware”

of Plaintiff’s “occurrences,” presumably the incidents alleged in the complaint at

Toledo Correctional about which Mr. Robinson complains. (ECF No. 1, ¶ 3, PageID

#3.) Further, Plaintiff alleges that Ms. Chambers-Smith and Assistant Director

Hudson “failed to intervene allowing Mr. Robinson to be beaten and attacked on many

occasions thereafter.” (Id., ¶ 4, PageID #3.) Similarly, Plaintiff claims that, by

requesting a formal criminal complaint from Warden Henderson, he “ma[de] her

aware of staff on inmate assault.” (Id., PageID #11.) Also, he claims that he made

Deputy Warden Denman aware of “medical’s deliberate indifference and improper

health care on more than one occasion, both verbally and in writing” and that he

“failed to properly supervise his subordinates according to the employee code of

conduct and contractual agreements and ensure [Plaintiff] receives the proper

medical, mental, and dental health care.” (Id., ¶ 20, PageID #11.)

Allegations that these Defendants were aware of these alleged incidents or

misconduct fail, as a matter of law, to give rise to supervisory liability. Hollis, 480 F.

Supp. 3d at 833 (citing Peatross, 818 F.3d at 241). In Hollis, the court determined

that the warden in that case was not liable under Section 1983 in part because the

plaintiffs had merely alleged that the warden had failed to act, which was “not

enough.” Id. at 834. Specifically, the court determined that the mere allegation that

“the Warden generally knew of a potential risk that could potentially result in harm

of some kind at some point in time, and should have done more to prevent that

possible harm,” was “not enough for personal liability.” Id. at 835–36. Further, “[t]he

‘denial of administrative grievances or the [mere] failure to act’ by prison officials

does not subject supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d

567, 576 (6th Cir. 2008) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).

Plaintiff has not pled that any of these Defendants “at least implicitly authorized,

approved or knowingly acquiesced in the unconstitutional conduct.” Hollis, 480 F.

Supp. 3d at 835 (quoting Phillips, 534 F.3d at 543).

Nor may Plaintiff rely on 18 U.S.C. § 242 for his claims. Such claims under

this statute are barred because “18 U.S.C. § 242 is a criminal statute and Plaintiff

has no private right of action thereunder.” Clark v. Ohio, No. 2:24-cv-4069, 2025 WL

372990, at *4 (S.D. Ohio Feb. 3, 2025) (quoting McConaughy v. Felton, No. 2:21-cv-

3927, 2021 WL 3288114, at *2 (S.D. Ohio Aug. 2, 2021)).

* * *

Taking the allegations of the complaint as true, the Court concludes, as a

matter of law, that Plaintiff fails to state a claim for supervisory liability against

Ms. Chambers-Smith, Director of the Department, Assistant Director Hudson,

Warden Henderson, Chief Inspector Lambert, or Deputy Warden Denman.

II.B.2. Failure to Allege Unconstitutional Conduct

Section 1983 provides a remedy “for deprivations of rights secured by the

Constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S.

922, 924 (1982).

II.B.2.a. Regional Director Sheldon

Plaintiff alleges that, when he told Regional Director Sheldon that he had

complaints, he allegedly responded “I’m not here for your ass,” which Plaintiff claims

was inappropriate and unprofessional. (ECF No. 1, ¶ 29, PageID #12.) This

allegation fails to state a claim under Section 1983. See Pierson v. Neil, No. 1:19-cv-

843, 2019 WL 5781948, at *3 (S.D. Ohio Nov. 6, 2019) (determining that the plaintiff’s

allegations that guards used profanity and threats against inmates failed to state a

claim under Section 1983). “It is well-settled that ‘[v]erbal harassment or idle threats

by a state actor do not create a constitutional violation and are insufficient to support

a section 1983 claim for relief.” Id. (citations omitted). “A prison official’s use of . . .

insults, ‘although unprofessional and reprehensible, does not rise to the level of

constitutional magnitude’ and is insufficient to support a constitutional claim for

relief.” Id. (citations omitted).

II.B.2.b. Deputy Warden Denman

Plaintiff claims that Deputy Warden Denman did not allow him to “further his

education with another college degree or a master’s program” and that the

Department refused to accept his high school diploma and bachelor’s degree as proof

of his “academic achievements.” (ECF No. 1, ¶ 31, PageID #13.) Further, Plaintiff

alleges that he was not allowed to “participate in college or graduate work with

Ashland University.” (Id.) These allegations fail to state a claim against Deputy

Warden Denman or the Department. “[A] prisoner has no constitutional right to

rehabilitation, education, or jobs.” Bullock v. McGinnis, 5 F. App’x 340, 342 (6th Cir.

2001) (citations omitted); see also Ziegler v. McGinnis, 32 F. App’x 697, 699 (6th Cir.

2002) (determining that a “prisoner has no constitutional right to rehabilitation or

education”) (citations omitted); Moore v. Chavez, 36 F. App’x 169, 170 (6th Cir. 2002)

(determining that the plaintiff, a prisoner, “had no constitutional right to take an

educational course”).

* * *

For these reasons, the Court GRANTS Defendants’ motion to dismiss

Plaintiff’s claims against Regional Director Sheldon, Deputy Warden Denman, and

Plaintiff’s claims related to educational and rehabilitative services.

II.B.3. State Agencies

Defendants argue that Plaintiff fails to state a claim against the Ohio

Department of Rehabilitation and Correction and the Toledo Correctional Institution

because they are not considered persons under Section 1983. (ECF No. 19, PageID

#294.) “[M]ultiple courts have found that ODRC is not a ‘person’ subject to suit under

42 U.S.C. § 1983.” Vizcarrondo v. Ohio Dep’t of Rehab. & Corr., No. 1:18-cv-01255,

2019 WL 6251775, at *5 (N.D. Ohio Nov. 22, 2019); see also Peeples v. Department of

Rehab. and Corr., No. 95-3117, 1995 WL 445714, at *1 (6th Cir. July 26, 1995)

(affirming dismissal of Section 1983 suit against the Department because “a state is

not a ‘person’ subject to suit under § 1983”); Henton v. Ohio Dep’t of Rehab. & Corr.,

No. 1:19-cv-462, 2019 WL 4346266, at *1 (N.D. Ohio Sept. 12, 2019) (determining that

the Department is not a “person” under Section 1983 because it “is an agency of the

State of Ohio”). Accordingly, the Court GRANTS Defendants’ motion to dismiss

Plaintiff’s claims against the Department and Toledo Correctional as an institution

within it.

II.B.4. Deliberate Indifference and Gross Negligence

In connection with incidents of falling in the day room and down stairs,

Plaintiff accuses Dr. Porter and Ms. Kroggel of gross negligence. (ECF No. 1, ¶ 20,

PageID #11.) Further, although Plaintiff only states the phrase “deliberate

indifference” regarding “medical,” Defendants interpret this complaint to bring this

claim against Dr. Porter and Dr. De La Cruz. (ECF No. 19, PageID #294–95.) The

Court agrees and liberally construes Plaintiff’s claims against “medical” to extend to

Dr. Porter, Dr. De La Cruz, and Ms. Kroggel. See Martin, 391 F.3d at 712.

The Eighth Amendment “forbids prison officials from ‘unnecessarily and

wantonly inflicting pain’ on an inmate by acting with ‘deliberate indifference toward

[his] serious medical needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th

Cir. 2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “The Eighth

Amendment embodies ‘broad and idealistic concepts of dignity, civilized standards,

humanity, and decency’ against which courts must evaluate penal measures.” Reilly

v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012) (quoting Estelle, 429 U.S. at 102).

To succeed on such a claim, Plaintiff must meet an objective as well as

subjective test. Blackmore, 390 F.3d at 895 (citing Farmer v. Brennan, 511 U.S. 825,

834 (1994)). Defendants contend that Plaintiff’s complaint does not satisfy either.

(ECF No. 19, PageID #294–95.)

II.B.4.a. Objective Test

The objective test requires Plaintiff to “plead facts which, if true, establish the

existence of a ‘sufficiently serious’ medical need.” Reilly, 680 F.3d at 623 (quoting

Blackmore, 390 F.3d at 895). 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)).

Plaintiff claims that he “went to Dr.’s appointments and kited regarding his

difficulty using stairs because of his permanent disabilities . . . as well as re-injuries

and new injuries . . . all of which Robinson has informed Defts. ODR&C; Doctors;

Nurses; Mental Health, and appropriate supervisors about.” (ECF No. 1, ¶ 20,

PageID #11.) In addition, Plaintiff claims that he made “requests or

recommendations” to Dr. De La Cruz “to see a specialist, such as a neurologist or foot

doctor, hearing doctor, or eye doctor,” which he was allegedly refused. (Id., ¶ 23,

PageID #11–12.) Further, Plaintiff alleges that he used a walker and that Dr. De La

Cruz told him that she would recommend physical therapy for him and not take away

his walker for a period of time. (Id., ¶ 27, PageID #12.) Taking Plaintiff’s allegations

as true, these conditions were sufficiently serious and obvious to survive the objective

test at this stage of the proceedings. Harrison, 539 F.3d at 518; see also Taylor v.

Franklin Cnty., Ky., 104 F. App’x 531, 538 (6th Cir. 2004) (determining that “obvious

signs” of “debilitating immobility were clear symptoms of a serious problem” for

purposes of satisfying the objective test for deliberate indifference, “even if Defendant

did not chose [sic] to believe Plaintiff”).

II.B.4.b. Subjective Test

For the subjective test, Plaintiff “must demonstrate Defendants acted with ‘a

sufficiently culpable state of mind in denying medical care.’” Reilly, 680 F.3d at 624

(quoting Blackmore, 390 F.3d at 895). A defendant has a sufficiently culpable state

of mind if he “knows of and disregards an excessive risk to inmate health or safety.”

Farmer, 511 U.S. at 837. “Deliberate indifference is characterized by obduracy or

wantonness—it cannot be predicated on negligence, inadvertence, or good faith

error.” Id. (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). Plaintiff “‘must allege

acts or omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.’” Id. The Court applies this subjective test to the actions of each

individual Defendant based on the allegations in the complaint.

II.B.4.b.i. Health Care Administrator Kroggel

Defendants claim that Plaintiff’s complaint “fails to allege any personal

wrongdoing whatsoever against . . . Health Care Administrator” Ms. Kroggel and that

“nowhere does the Complaint plead the active unconstitutional conduct required to

state a constitutional claim under § 1983 against [her].” (ECF No. 19, PageID #294.)

Plaintiff alleges that “[k]nowing [the] information [regarding Mr. Robinson’s

permanent disabilities] and that the facility already has elevator access, Deft. HCA,

‘Ms. K’ answered in a kite, ‘use the stairs.’” (ECF No. 1, ¶ 20, PageID #11.) Plaintiff

does not specify when this interaction occurred, but goes on to claim that in May 2022

he fell down a flight of stairs going to recreation and fell again in the day room in

June 2022 “attempting to walk (without the necessary assistance due to . . . HCA

‘Ms. K’’s . . . gross negligence in both cases) to get his lunch tray.” (Id.) Plaintiff’s

claim that Ms. Kroggel acted negligently in these instances is conclusory, and a legal

conclusion in any event. At this stage of the proceedings, the Court takes as true the

allegation that Ms. Kroggel knew of Mr. Robinson’s disabilities, he notified her of his

difficulty using the stairs because of his disabilities, and Ms. Kroggel told him to use

the stairs nonetheless. Eidson, 510 F.3d at 634 (6th Cir. 2007) (citing Twombly, 550

U.S. at 544). Plaintiff alleges that his fall in May 2022 involved his use of the stairs.

(ECF No. 1, ¶ 20, PageID #11.)

“Courts . . . have concluded that forcing an inmate with an obvious impairment

to walking to descend stairs without adequate assistance presents a triable issue of

fact as to deliberate indifference.” Krontz v. Westrick, No. 3:08-cv-46, 2009 WL

2633761, at *3 (N.D. Ohio Feb. 9, 2009) (citing cases from other circuits in which

prison officials knew of the plaintiff’s leg impairment but “nevertheless required him

to go down stairs”). There, the court reasoned that “[a] rational jury could find that

the risk posed by the shackles and long pants was so obvious that the supervising

officials must have been aware that [the plaintiff] could fall.” Id. It reasoned that

“[c]losing one’s eyes and doing nothing in the face of such manifest risk, a rational

jury could find, constitutes deliberate indifference to the inmate’s safety and well-

being.” Id. Here, Plaintiff alleges that Toledo Correctional had elevator access and

that Ms. Kroggel was aware of his permanent disabilities. (ECF No. 1, ¶ 20, PageID

#11.) Therefore, the Court declines to dismiss this claim against Ms. Kroggel.

II.B.4.b.ii. Dr. Porter

Defendants argue that Plaintiff’s complaint fails to allege any “personal

responsibility or level of culpability required to state a deliberate indifference claim”

against Dr. Porter. (ECF No. 19, PageID #295.) Like his allegations against

Ms. Kroggel, Plaintiff claims he fell down the stairs in May 2022 and fell in the day

room in June 2022 “without the necessary assistance due to . . . Dr. Porter’s . . . gross

negligence in both cases.” (ECF No., ¶ 20, PageID #11.) Unlike Ms. Kroggel, nowhere

in the complaint does Plaintiff allege any interactions with Dr. Porter. Nor does he

make any allegation showing or giving rise to an inference that Dr. Porter knew of

his disabilities. Just because he is a doctor does not mean he treated Mr. Robinson

or knew of his condition. Indeed, this allegation provides the only instance in the

complaint outside the caption where Dr. Porter’s name appears. Although Plaintiff

claims that he informed doctors, nurses, and appropriate supervisors about his

disabilities, nowhere does he establish Dr. Porter’s personal involvement in any

deprivation of federal rights or that she knew about any of his conditions. Moreover,

“[g]ross negligence is not actionable under § 1983, because it is not ‘arbitrary in the

constitutional sense.’” Lewellen v. Metropolitan Gov’t of Nashville & Davidson Cnty.,

Tenn., 34 F.3d 345, 351 (6th Cir. 1994) (quoting Collins v. City of Harker Heights,

Tex., 503 U.S. 115, 129 (1992)). For these reasons, Plaintiff fails to state a claim

against Dr. Porter.

II.B.4.b.iii. Dr. De La Cruz

Defendants argue that Plaintiff’s complaint “fail[s] to identify any specific

action sufficient to sustain a claim for liability under § 1983” against Dr. De La Cruz,

nor “does it contain sufficient facts to show Dr. De La Cruz’s alleged actions . . . to

state a medical deliberate indifference claim under the Eighth Amendment.” (ECF

No. 19, PageID #295.) Mr. Robinson claims that he made “requests or

recommendations” to Dr. De La Cruz “to see a specialist, such as a neurologist or foot

doctor, hearing doctor, or eye doctor,” which he was allegedly refused, and in doing so

Dr. De La Cruz allegedly “refused to give Plaint. Robinson proper health care.” (Id.,

¶ 23, PageID #11–12.) Further, Plaintiff alleges that he used a walker and that

Dr. De La Cruz told him that she would recommend physical therapy for him and not

take away his walker for a period of time. (Id., ¶ 27, PageID #12.) Allegedly, these

representations came after Dr. De La Cruz previously told Mr. Robinson that she was

going to take his walker and that they did not offer physical therapy or referrals to

specialists. (Id.)

Taking Plaintiff’s allegations as true at this stage, there are no allegations of

personal conduct on behalf of Dr. De La Cruz that amount to “acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Reilly, 680 F.3d at 624. At best, Dr. De La Cruz’s refusal of a referral to a specialist

amounts to negligence. But the Eighth Amendment does not constitutionalize a claim

for medical malpractice, if there was any here. See Reilly, 680 F.3d at 627 (citing

Estelle, 429 U.S. at 105–06). In Reilly, the pro se plaintiff alleged that his doctor in

prison failed to “promptly refer [Plaintiff] to or consult with [a] . . . specialist,” “provide

timely . . . medical care,” and ensure the plaintiff was “evaluated by a physician.” Id.

at 625. The Sixth Circuit determined that “[t]hese allegations may support a claim

for professional negligence, but under established law, deliberate indifference ‘entails

something more than mere negligence.’” Id. (quoting Blackmore, 390 F.3d at 895).

So too here. Because Plaintiff does not allege any facts that support the subjective

test that Dr. De La Cruz knew of or disregarded “an excessive risk to inmate health

or safety,” Plaintiff fails to state a claim against Dr. De La Cruz. Farmer, 511 U.S.

at 837.

* * *

For these reasons, the Court GRANTS Defendants’ motion to dismiss

Plaintiff’s claims against Dr. Porter and Dr. De La Cruz and DENIES dismissal of

Plaintiff’s claim against Ms. Kroggel.

II.B.5. Threat of Force

Plaintiff alleges that there was an incident at Toledo Correctional in which

“SRT” forced Plaintiff to submit to a strip search “even though they didn’t have cause

for that type of search.” (ECF No. 1, ¶ 19, PageID #10–11.) He claims that Defendant

Major Brown “threatened to use force including the use of a pepper ball gun if Plaint.

Robinson refused to submit to the strip search.” (Id.) Defendants argue that

Plaintiff’s complaint provides no indication that Major Brown used any force or that

his threat was a constitutional violation. (ECF No. 19, PageID #295–97.) Plaintiff

does not allege what constitutional right Major Brown’s alleged actions violated. The

Court liberally construes this claim as arising under the Eighth Amendment. Martin,

391 F.3d at 712.

Through the Fourteenth Amendment’s Due Process Clause, the Eighth

Amendment prohibits State officials from inflicting “cruel and unusual punishments”

on prison inmates. U.S. Const. amends. VIII & XIV; Wilson v. Seiter, 501 U.S. 294,

296 (1991). Pursuant to this prohibition, prison officials “must take reasonable

measures to guarantee the safety of the inmates.” Rhodes v. Michigan, 10 F.4th 665,

673 (6th Cir. 2021) (internal quotation marks omitted). “[N]ot every unpleasant

experience a prisoner might have while incarcerated constitutes cruel and unusual

punishment within the meaning of the Eighth Amendment.” Barndt v. Corrections

Corp. of America, No. 4:11-cv-0831, 2011 WL 3862070, at *3 (N.D. Ohio Aug. 31,

2011). The Eighth Amendment prohibits conduct by prison officials that involves the

“unnecessary and wanton infliction of pain.” Id. (quoting Rhodes v. Chapman, 452

U.S. 337, 346 (1981)).

To establish a claim under the Eighth Amendment, “the prisoner must satisfy

both an objective and a subjective component.” Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011). Under the objective analysis, the pain inflicted must be “sufficiently

serious.” Id. (quoting Wilson, 501 U.S. at 298). On this score, Plaintiff’s claim fails

as a matter of law. There was no pain inflicted because Plaintiff does not allege that

Major Brown used force against him. Because Plaintiff fails to satisfy the objective

test, he fails to state a claim against Major Brown, and the Court need not consider

the subjective test.

II.B.6. Retaliation Claim

Plaintiff alleges that he submitted a request for informal complaint resolution

claiming that the cashier’s office did not follow the Ohio Administrative Code when

it denied his status as indigent. (ECF No. 1, ¶ 32, PageID #13.) Plaintiff alleges that

Defendant Chief Inspector Lambert issued to Plaintiff two separate 90-day

“ICR/Grievance suspensions,” which Plaintiff claims were “in retaliation of Plaint.

Robinson making legitimate complaints.” (Id., ¶ 33, PageID #13.) Defendants argue

that the Ohio Administrative Code authorized Chief Inspector Lambert to restrict

Plaintiff’s access to the grievance system “as the result of his persistent refusal to

take no for an answer concerning his redundant informal complaint resolutions,

grievances and appeals insisting that he is indigent.” (ECF No. 19, PageID #297.)

Plaintiff does not specifically claim that this alleged retaliation violated his First

Amendment rights, although he does allege that his First Amendment rights were

violated in the header and last page of his complaint. (ECF No. 1, Page ID #1 & #16.)

The Court liberally construes this allegation to be a First Amendment relation claim.

Martin, 391 F.3d at 712.

To state a claim for First Amendment retaliation, Plaintiff must plead that

(1) he engaged in a constitutionally protected activity; (2) Defendants’ adverse action

caused him to suffer an injury that would likely chill a person of ordinary firmness

from continuing to engage in that activity; and (3) the adverse action was motivated,

at least in part, as a response to the exercise of Plaintiff’s constitutional rights. Leary

v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) (citations omitted). Defendants argue

that Plaintiff’s complaint “fails to allege the retaliatory motive required to state a

retaliation claim against any prison official” because “both the protected conduct and

the adverse action Plaintiff claims revolve solely around his flagrant abuse and

misuse of the grievance process.” (ECF No. 19, PageID #298.)

II.B.6.a. Constitutionally Protected Activity

“It is well established that prisoners have a constitutional right to file

grievances against correctional employees.” Pasley v. Conerly, 345 F. App’x 981, 984

(6th Cir. 2009) (citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)); see also

Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (determining that the use of the

inmate grievance mechanism to file grievances was protected conduct). “[I]f a

prisoner violates a legitimate prison regulation, he is not engaged in ‘protected

conduct,’ and cannot proceed beyond step one” of the retaliation analysis.

Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir. 1999). Further, a prisoner’s First

Amendment right to file institutional grievances without being subject to retaliation

“only extends to the filing of non-frivolous grievances.” Walker v. Michigan Dep’t of

Corr., 128 F. App’x 441, 445–46 (6th Cir. 2005) (citations omitted). Plaintiff does not

specifically state the contents of his “legitimate complaints” apart from his informal

complaint challenging the denial of his indigency status. (ECF No. 1, ¶¶ 32–33,

PageID #13.) Plaintiff took issue with a policy regarding the determination of his

indigency status, and he claimed he lacked access to do further research. (Id., ¶ 32,

PageID #13.) Although Defendants argue these indigency challenges may have been

“redundant,” at the pleading stage, nothing in the complaint suggests that

Mr. Robinson filed multiple requests. Nor do the pleadings show that the grievance

was frivolous. Therefore, the Court treats Plaintiff as pleading a constitutionally

protected right to contest his indigency status. See Pasley, 345 F. App’x at 985

(determining that, because the plaintiff’s threatened grievance was “arguably

legitimate, his conduct was arguably protected by the First Amendment”).

II.B.6.b. Adverse Action

In Brooks v. Yates, No. 1:09-cv-922, 2012 WL 2115301, at *13 (S.D. Ohio Mar.

30, 2012), the court determined that, because the defendant “merely restricted

Plaintiff to filing 2 informal complaints per week for a period of 90 days,” this “limited

restriction . . . did not abridge any of Plaintiff’s constitutional rights.” The Sixth

Circuit recognizes that “placement on modified access status does not constitute an

adverse action when the protected activity was filing administrative grievances.”

Jackson v. Madery, 158 F. App’x 656, 660 (6th Cir. 2005), abrogated on other grounds

by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018)) (citing Walker, 128 F. App’x at 446).

In Jackson, the Sixth Circuit reasoned that a modified access restriction “would not

deter a person of ordinary firmness from pursuing non-frivolous grievances against

prison officials.” Id.

Here, Plaintiff claims that he was subjected to “two separate 90 day

ICR/Grievance suspensions.” (ECF No. 1, ¶ 33, PageID # 13.) Under Rule 5120-9-

31(E) of the Ohio Administrative Code, Chief Inspector Lambert has the authority to

restrict Plaintiff’s access to the prison grievance system. When doing so, the Ohio

Department of Rehabilitation and Correction must make provisions “to ensure that

the inmate can pursue issues that could present a substantial risk of physical injury,

such as medical concerns, through the inmate grievance procedure,” and that inmates

must be notified of any restriction in writing. Ohio Admin. Code Rule 5120-9-31(E).

Plaintiff does not allege that he was unable to pursue a grievance presenting a

substantial risk of physical injury or that his suspension did not afford him the ability

to pursue a grievance regarding a substantial risk of physical injury or a medical

concern. To the contrary, his suspensions fall squarely within the Sixth Circuit’s

reasoning that restrictions of this sort “would not deter a person of ordinary firmness

from pursuing non-frivolous grievances against prison officials.” Jackson, 158 F.

App’x at 660.

Therefore, the adverse action of which Plaintiff complains did not cut off his

constitutionally guaranteed access to the grievance process. Plaintiff fails to state a

retaliation claim.

II.B.7. General Claims

Several of Plaintiff’s claims in his complaint have no connection to any

Defendant. “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.” Gilmore v. Corrections Corp. of America, 92 F. App’x 188, 190 (6th

Cir. 2004) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155–57 (1978)). In

Gilmore, despite listing 22 individuals in the caption of his complaint, the pro se

plaintiff claimed in the body of his complaint that the “staff and security” of the

correctional institution violated his constitutional rights. Id. Therefore, the Sixth

Circuit affirmed the dismissal of those claims. Id.

Like the plaintiff in Gilmore, Plaintiff in this case makes multiple allegations

that do not identify any Defendant regarding the alleged incidents at Toledo

Correctional. These allegations include the following: “Robinson was unnecessarily

extracted from his cell with excessive force;” “some of Robinson’s property was lost or

stolen by staff;” “[Mr. Robinson’s] [p]roperty being denied improperly;” “Robinson has

attempted to get approval for his emotional support animal;” and “[Mr. Robinson]

attempted to gain approval for a prescription of medical marijuana.” (ECF No. 1,

¶¶ 21, 30 & 34, PageID #11–14.) The Court cannot infer from these claims which, if

any, Defendant might have committed the actions complained of.

II.B.8. Policy Violations

Plaintiff alleges violations of “the code of conduct and contractual agreements”

regarding “proper medical, mental, and dental health care,” violations of “proper

policy pertaining to the control of contraband and property,” violations of “proper fall

protocol,” insufficient policy decisions regarding indigency status, and refusal to print

paper copies of grievances. (Id., ¶¶ 20–21, 28, 32 & 34, PageID #11–13.) Also, he

claims that the Ohio Department of Rehabilitation and Correction has banned Maiya

McCoy from visiting him. (Id., ¶ 18, PageID #10.)

“[A]lleged violations of ODRC policy do not state a claim under § 1983”

because “Section 1983 does not provide a remedy for violations of state laws or

regulations.” Tolliver v. Ohio Dep’t of Rehab. & Corr., No. 2:22-cv-4567, 2023 WL

2990186, at *8 (S.D. Ohio Apr. 18, 2023) (citations omitted); see also Brown v.

Mahlman, No. 1:233-cv-239, 2022 WL 17817615, at *3 (S.D. Ohio Dec. 19, 2022)

(dismissing alleged violations of Department policy because they “fall outside the

scope of § 1983”). A defendant’s “alleged failure to comply with [a state]

administrative rule or policy does not itself rise to the level of a constitutional

violation.” Id. (citations omitted). Therefore, none of these alleged violations state a

claim under Section 1983.

II.B.9. Official Capacity Claims

Plaintiff’s suit against Defendants in their official capacities is a suit against

the State. Graham v. Kentucky, 473 U.S. 159, 165–66 (1985); see also Hollis, 480 F.

Supp. 3d at 836 (determining that the warden was a State employee). The Supreme

Court has held that “neither a State nor its officials acting in their official capacities

are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989). Suing officials in their official capacities for “acts performed within the scope

of [their] authority is equivalent to suing the governmental entity itself.” Graham,

473 U.S. at 166 (1985).

“For the State of Ohio and ODRC, the Eleventh Amendment provides

immunity from suits brought in federal court.” Kirkland v. ODRC, No. 4:23-cv-00305,

2023 WL 8807240, at *5 (N.D. Ohio Dec. 19, 2023) (citing Welch v. Texas Dep’t of

Highways & Publ. Transp., 483 U.S. 468 (1987)). While States may waive their

Eleventh Amendment immunity, “Ohio has not done so for cases brought under

Section 1983.” Id. (citing Wolfel v. Morris, 972 F.2d 712, 718 (6th Cir. 1992)).

Eleventh Amendment immunity “extends to State agents and instrumentalities, like

ODRC.” Id. (citing Beil v. Lake Erie Corr. Records Dep’t, 282 F. App’x 363, 366 (6th

Cir. 2008)). Therefore, Plaintiff’s Section 1983 claims against the ODRC Defendants

in their official capacities must fail.

* * *

For these reasons, the Court GRANTS IN PART AND DENIES IN PART

Defendants’ motion to dismiss.

II. The American Correctional Association’s Motion to Dismiss

The American Correctional Association moves to dismiss Plaintiff’s Section

1983 claims against it. The Court limits its analysis to the allegations of the

complaint and does not go outside the pleadings at this stage of the proceedings.

Therefore, the Court need not and does not convert this motion to one for summary

judgment.

II.A. Under Color of Law

Section 1983 provides a cause of action against a person who acts “under color

of” law. 42 U.S.C. § 1983. “A plaintiff may not proceed under § 1983 against a private

party ‘no matter how discriminatory or wrongful’ the party’s conduct.” Tahfs v.

Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (quoting American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999)). The statute only reaches the actions of a person

who acts under color of law. Therefore, a “private party’s actions constitute state

action . . . where those actions may be ‘fairly attributable to the state.’” Chapman v.

Highbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (quoting Lugar, 457 U.S. at 937); see

also Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (determining that the

“principal inquiry” regarding whether a private party’s actions constitute State action

is whether they are “fairly attributable to the state”) (quoting Lugar, 457 U.S. at 937).

According to the American Correctional Association, every court that has

considered the issue has found that it is a private actor and not a proper defendant

in an action under Section 1983. (ECF No. 24, PageID #315 n.2.) However, it fails to

cite or discuss any of these cases. Within the Sixth Circuit, one district court appears

to have so ruled. See Bumpas v. Corrections Corp. of America, No. 3:10-1055, 2011

WL 3841674, at *5 (M.D. Tenn. Aug. 30, 2011) (concluding that “the plaintiff has not

set forth any allegations supporting a conclusion that [it is a] state actor[] for the

purpose of Section 1983.”).

II.B. State Action Tests

The Supreme Court employs three tests to assess whether a private party’s

actions constitute State action. See Chapman, 319 F.3d at 833 (citing Wolotsky, 960

F.2d at 1335). These tests are: “(1) the public function test, (2) the state compulsion

test, and (3) the symbiotic relationship or nexus test.” Id. Recent cases in the Sixth

Circuit add a fourth test, “the entwinement test,” which involves a similar analysis

to the symbiotic relationship test. Snodgrass-King Pediatric Dental Assocs., P.C. v.

DentaQuest USA Ins. Co., Inc., 780 F. App’x 197, 204 (6th Cir. 2019) (quoting Marie

v. American Red Cross, 771 F.3d 344, 362 & n.6 (6th Cir. 2014)). Defendant argues

that Plaintiff fails to satisfy these tests to demonstrate that it is a State actor for

purposes of his Section 1983 claims. (ECF No. 24, PageID #316.) The Court assesses

each in turn.

II.B.1. The Public Function Test

“Under the public function test, ‘a private entity may qualify as a state actor

when it exercises powers traditionally exclusively reserved to the State.” Miller v.

Gettel, No. 22-1034, 2023 WL 2945340, at *4 (6th Cir. Apr. 14, 2023) (quoting

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019)) (cleaned up). The

Supreme Court recognizes that “very few” functions satisfy this test. Halleck, 587

U.S. at 809 (quoting Flagg Bros, 436 U.S. at 158). The Sixth Circuit interprets this

test “narrowly,” with only actions such as “holding elections,” “exercising eminent

domain,” and “operating a company-owned town” satisfying this requirement.

Chapman, 319 F.3d at 833 (citations omitted).

Even liberally construing Plaintiff’s complaint, the American Correctional

Association engaged in no such activity. All that Plaintiff alleges is that it audited

the Toledo Correctional Institution and that the prison “passed the audit.” (ECF

No. 1, ¶ 24, PageID #12.) Plaintiff provides no arguments or facts to demonstrate

that accreditation “is one of the very few functions that are ‘traditionally and

exclusively performed’ by government.” Miller, 2023 WL 2945340, at *4 (citing

Halleck, 587 U.S. at 809). Nor has the Court located any authority for such a

proposition. Therefore, under the public function test, the complaint fails to plead

that the American Correctional Institution is a State actor.

II.B.2. The State Compulsion Test

“Under the ‘state compulsion’ test, the state must ‘exercise such coercive power

or provide such significant encouragement, either overt or covert, that in law the

choice of the private actor is deemed to be that of the state.” Siskaninetz v. Wright

State Univ., 175 F. Supp. 2d 1018, 1023 (S.D. Ohio 2001) (citing Wolotsky, 960 F.2d

at 1335). Mere correspondence between State actors and private actors is not

sufficient to establish “coercive power” or “significant encouragement.” Lansing v.

City of Memphis, 202 F.3d 821, 829–30 (6th Cir. 2000). Further, “[m]ere approval of

or acquiescence in the initiatives of a private party is not sufficient to justify holding

the State responsible for those initiatives under the terms of the Fourteenth

Amendment.” Snodgrass-King Pediatric Dental Assocs., 780 F. App’x at 204 (quoting

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). A plaintiff must establish that State

actors “coerced or participated” in the private actor’s decision-making process. Id.

(quoting Wilcher v. City of Akron, 498 F.3d 516, 520 (6th Cir. 2007)).

Here, the allegations of the complaint establish, if anything, the opposite

conditions for application of the State compulsion test. Rather than the State

coercing or participating in the decision-making process of the American Correctional

Association, the accreditation process about which Plaintiff complains works in the

opposite direction. Nor does Plaintiff allege that any governmental entity or agency

attempted to coerce or compel the Association to take any action. The American

Correctional Association’s audit of the Toledo Correctional Institution, without more,

does not demonstrate “coercive power” or “significant encouragement” on the part of

any State actor. At most, Toledo Correctional’s use of the audit amounts to “mere

approval of or acquiescence in” ACA’s actions, which is not enough. Snodgrass-King

Pediatric Dental Assocs., 780 F. App’x at 204 (quoting Blum, 457 U.S. at 1004).

Therefore, Plaintiff fails to allege that the American Correctional Association is a

State actor under the State compulsion test.

II.B.3. The Symbiotic Relationship or Nexus Test

“Under the symbiotic relationship or nexus test, a section 1983 claimant must

demonstrate that there is a sufficiently close nexus between the government and the

private party’s conduct so that the conduct may be fairly attributed to the state itself.”

Chapman, 319 F.3d at 834 (citations omitted). “[M]ere cooperation simply does not

rise to the level of merger required for a finding of state action.” Marie, 771 F.3d at

363 (citing Lansing, 202 F.3d at 831). Instead, the “plaintiff’s allegations must show

that the state is ‘intimately involved’ in the challenged conduct.” Estate of Q.W. v.

Lucas Cnty. Child. Servs., 682 F. Supp. 3d 671, 682 (N.D. Ohio 2023) (citing Wolotsky,

960 F.2d at 1335). A contractual relationship does not establish this level of intimate

involvement, even where the contract “subjects the private actor to an ‘extensive and

detailed’ set of requirements.” Burke v. Ohio Dep’t of Rehab. & Corr., No. 2:21-cv-48,

2022 WL 93326, at *3 (S.D. Ohio Jan. 10, 2022) (citing Wolotsky, 960 F.2d at 1336).

“[A] plaintiff must show that the state played a role in the decision made by the

private actor that led to the deprivation of Plaintiff’s rights, either by showing, for

example, that the contract necessitated the private actor’s decision or that state

actors were involved in the decision.” Id. (citation omitted) (cleaned up).

Plaintiff’s allegations fail to allege anything more than a contractual

relationship between the State and the American Correctional Association. No

allegation or argument suggests or gives rise to an inference that that contract

“necessitated the private actor’s decision,” or that “state actors were involved in the

decision.” Burke, 2022 WL 93326, at *3 (citation omitted). Therefore, Plaintiff fails

to allege that the American Correctional Association is a State actor under the

symbiotic relationship or nexus test.

II.B.4. The Entwinement Test

Under the entwinement test, Plaintiff must allege that Defendants conduct is

“entwined with governmental policies” or “entwined in [the private entity’s]

management or control.” Marie, 771 F.3d at 363–64 (citing Vistein v. American

Registry of Radiologic Technologists, 342 F. App’x 113, 128 (6th Cir. 2009)). “The

crucial inquiry under the entwinement test is whether the ‘nominally private

character’ of the private entity ‘is overborne by the pervasive entwinement of public

institutions and public officials in its composition and workings [such that] there is

no substantial reason to claim unfairness in applying constitutional standards to it.”

Vistein, 342 F. App’x at 128 (quoting Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 296 (2001)). Evidence that a public entity acted in

compliance with the recommendations of a private entity “does not transform the

private entity into a state actor.” Id. (citing National Collegiate Athletic Ass’n v.

Tarkanian, 488 U.S. 179, 194 (1988)).

Here too, Plaintiff’s complaint at most alleges that the State acted in

compliance with the audit of the Toledo Correctional Institution that the American

Correctional Association performed. Nothing about that fact pleads that its conduct

is so closely entwined with that of the State that it is subject to liability under Section

1983. Further, any allegation that Toledo Correctional reformed or modified its

practices to comply with the American Correctional Association’s standards or the

results of its audit does not transform the Association into a State actor. Vistein, 342

F. App’x at 128 (quoting Brentwood Acad., 531 U.S. at 296). Therefore, Plaintiff fails

to allege that the American Correctional Association is a State actor under the

entwinement test.

* * *

For these reasons, the Court concludes that the complaint fails to state a claim

against the American Correctional Association and, therefore, GRANTS Defendant’s

motion to dismiss.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN

PART the motion of the ODRC Defendants to dismiss. Specifically, the Court

DENIES the motion as to Plaintiffs deliberate indifference claim against Hannah

Kroggel and GRANTS the motion in all other respects. Further, the Court GRANTS

the American Correctional Association’s motion to dismiss.

SO ORDERED.

Dated: March 11, 2025

J.PhilipCalabrese

United States District Judge

Northern District of Ohio

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