# Payton v. Roe

> District Court, S.D. Ohio · May 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11052697

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William H. Payton,
Plaintiff, Case No. 2:25-cv-114
V. Judge Michael H. Watson
Ken Roe, et ai., Magistrate Judge Vascura
Defendants.
OPINION AND ORDER
William H. Payton (“Plaintiff’), a prisoner proceeding without the assistance
of counsel, filed his Complaint and paid the filing fee in this case. ECF Nos. 1, 2.
The Complaint alleged that Plaintiff is a white male inmate in the custody of the
Ohio Department of Rehabilitation and Correction (““ODRC”) who suffers from
heart disease and requires the use of a defibrillator. E.g., Compl. [J 7, 15, 28,
ECF No. 1. At bottom, he argued that he previously sued Dave Dunn (“Dunn”),
among others, resulting in a settlement. /d. As part of the settlement,
Plaintiff was to be reinstated to a paygrade 7 job with the Ohio Penal Industries
(“OPI”). Id. Jf] 26-27. lt is unclear whether the settlement provided for
reinstatement to a job at the Meat Processing Career Center (“MPCC’”) or the
Print Shop (“PS”),' but Plaintiff was eventually assigned to the PS. /d. J 28.

1 See id. J 26 (“As part of the Settlement, the Plaintiff received his job back OPI [sic]
and was Assigned to the PS... .”), {27 (“When the settlement was completed on or
about January 7, 2022, the Plaintiff was to get back his position with MPCC ... .”).

Before Plaintiff's arrival at the PS, Ken Roe (“Roe”), the original supervisor
at the PS, met with the other inmates working there and told them about
Plaintiff's settlement. /d. J[ 28-29. As a result of Roe’s meeting, the other
inmates at the PS created a hostile work environment for Plaintiff by constantly
harassing him. E.g., id. Plaintiff complained to Roe; Casey Arledge (“Arledge’),
the subsequent supervisor at the PS; and William Bierbaugh (“Bierbaugh’), the
regional manager for OPI. All three failed to remedy the hostile work
environment. E.g., id. 757. Plaintiff was eventually attacked by another inmate
while at work. /d. 70-75. Based on these facts, Plaintiff sued Roe, Arledge,
and Bierbaugh (collectively, “Defendants”) in their official capacities for
declaratory and injunctive relief and in their individual capacities for damages. /d.
1, 4.
The Magistrate Judge initially screened the Complaint, pursuant to 28
U.S.C. § 1915A, and Plaintiffs motion for leave to proceed in forma pauperis for
the remainder of the litigation. She issued an Order and Report and
Recommendation (“R&R”), permitting some claims to proceed but recommending
that the Court dismiss others and deny Plaintiff's motion for leave to continue in
forma pauperis. R&R, ECF No. 7.
Plaintiff objected, ECF No. 8, and then filed an Amended Complaint, ECF
No. 9.

Case No. 2:25-cv-114 Page 2 of 12

ll. STANDARDS OF REVIEW
With respect to the original Complaint, the Court should review “de novo

any part of the magistrate judge’s disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended disposition;
receive further evidence or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3).
Moreover, Plaintiff's Amended Complaint is subject to an initial screen
under 28 U.S.C. § 1915A(b). Pursuant to that statute, the Court “shall identify
cognizable claims” and dismiss any portion of the Amended Complaint that is
“frivolous, malicious, or fails to state a claim upon which relief may be granted” or
“seeks monetary relief from a defendant who is immune from such relief.” /d.
Here, the Amended Complaint moots the original Complaint and would
ordinarily also moot the R&R on the original Complaint and Plaintiff's objections
to that R&R. Apart from clarifying that Bierbaugh is Manager 2 (as opposed to
Regional Director) at OPI, replacing the phrase “hostile work environment’ with
“harassment,” and making other minor changes, though, the Amended Complaint
is virtually identical to the original Complaint. E.g. compare Am. Compl. If 9, 22,
36, ECF No. 9, with Compl. Jf] 21, 34, ECF No. 1. Importantly, there are several

new paragraphs in the Amended Complaint, but neither they nor the attached
affidavit impacts the Magistrate Judge’s analysis of the original Complaint. See
Am. Compl. Jf] 61, 63(a), 64, ECF No. 9; Payton Aff., ECF No. 9-1. Therefore,
the above standards of review merge in that the Court will consider only the
Case No. 2:25-cv-114 Page 3 of 12

sufficiency of the Amended Complaint but will also consider the Magistrate
Judge’s R&R and Plaintiffs objections thereto, to whatever extent they are
pertinent to the Amended Complaint.
lll. ANALYSIS
The R&R construed the original Complaint as advancing
claims for (1) allowing a hostile work environment under Title VII of
the Civil Rights Act of 1964, (2) denying participation in a public
program under the Americans with Disabilities Act, (3) failure to
protect Plaintiff from assault by Strunk under the Eighth Amendment;
(4) deliberate indifference to serious medical needs under the Eighth
Amendment, and (5) deprivation of liberty without due process of law
under the Fourteenth Amendment. Plaintiff sues all Defendants in
both their individual and official capacities, though he specifies that he
seeks damages from Defendants only in their individual capacities
and seeks declaratory and injunctive relief against Defendants only in
their official capacities.
R&R 4, ECF No. 7.
The R&R then permitted Plaintiff to proceed on his individual-capacity
damages claims against all Defendants for their alleged failure to protect Plaintiff
from Strunk’s assault ((3) above). /d. at 1. It also permitted Plaintiff to seek
certain injunctive relief from Bierbaugh and Arledge. /d. at 1-2. But it
recommended denying claims (1), (2), (4), and (5) against all Defendants and
denying Plaintiff injunctive relief against Roe because Roe no longer works at
Plaintiff's place of confinement. /d. at 5-10. Finally, it recommended denying
Plaintiff's motion for leave to litigate the remainder of the case in forma pauperis
because Plaintiff has more than $4,000 in his inmate account. /d. at 7.

Case No. 2:25-cv-114 Page 4 of 12

Plaintiff objects only to dismissal of the Americans with Disabilities Act
(“ADA”) claim. Obj., ECF No. 8 (“The Plaintiff objects to the decision of this court
concerning: Analysis B Denying participation in public program under America
[sic] with Disabilities Act.”). Consistent with his limited objection, the Amended
Complaint expressly disclaims claims (4) and (5). Am. Compl., ECF No. 9 at
PAGEID # 199 (“The following is not a Due Process violation only point out
what happened.”), PAGEID # 200 (“The following is not a Deliberate
INDIFFERENCE to medical claim only shows injury.”) (emphases in original);
Obj. 1, ECF No. 8 (“[H]e did not raise no medical issue of Deliberate Indifference
he only pointed out injury. Nor did he raise Due process Claim, he only pointed
out again what happened.”).
So, the Court does not construe the Amended Complaint as raising an
Eighth Amendment deliberate indifference claim in connection with the medical
treatment Plaintiff received after Strunk’s attack or a Fourteenth Amendment Due
Process claim based on Plaintiff's security level reclassification after the attack.
Alternatively, to the extent the Amended Complaint attempts to re-allege those
claims, the allegations in the Amended Complaint concerning those claims are
materially identical to the allegations in the original Complaint regarding those
claims. Plaintiff forfeited his right to de novo review of those claims by failing to
object to the R&R’s recommendation to dismiss the same.
Similarly, the Court construes Plaintiff's intentional replacement of the
phrase “hostile work environment” (or “HWE”) with “harassment” in the Amended
Case No. 2:25-cv-114 Page 5 of 12

Complaint as a voluntary dismissal of the Title VII claim. Alternatively, if the
Amended Complaint attempts to re-raise a Title VII claim, Plaintiff failed to object
to the R&R’s recommendation to dismiss that claim. Again, the Amended
Complaint is not materially different from the original Complaint in any way that
would affect this analysis.
Nor did Plaintiff object to the R&R’s recommendation that the Court deny
Plaintiff leave to litigate the remainder of this case in forma pauperis or deny
injunctive relief against Roe because he now works at a different facility. The
Amended Complaint does not cure either deficiency noted in the R&R, nor did
Plaintiff object to either recommendation.
The Court thus now turns to Plaintiffs sole objection: whether he states a
claim under the ADA.
Title II of the ADA states that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132. Title Il of the ADA
applies to state prisoners. Penn. Dept. of Corr. v. Yeskey, 524 U.S. 206, 213
(1998). “Two types of claims are cognizable under ADA Title Il: claims for
intentional discrimination and claims for a reasonable accommodation.”
Williamson v. Wheeler, No. 22-4017, 2023 WL 51847714, at *2 (6th Cir. Aug. 9,
2023) (cleaned up). Plaintiff's Amended Complaint raises an intentional

Case No. 2:25-cv-114 Page 6 of 12

discrimination claim.2 See, e.g., Am. Compl. {| 38(b), ECF No. 9 (addressing
unwelcome harassment).
“An intentional discrimination claim lies where the defendant treated
someone less favorably on account of his disability; proof of discriminatory
motive is critical.” Knox Cty., Tenn. v. M.Q., 62 F.4th 978, 1000 (6th Cir. 2023)
(cleaned up). So, where a plaintiff fails to allege facts showing the defendants
denied the plaintiff benefits, deprived the plaintiff of a public service, or
discriminated against the plaintiff because of a disability, he fails to state a Title II
ADA discrimination claim.? E.g., Smith v. Dawdy, No. 23-2043, 2024 WL
4925843, at *4 (6th Cir. Sept. 13, 2024).

2 The Amended Complaint acknowledges that the PS position was meant to
accommodate all work restrictions required by Plaintiffs heart disease. Am. Compl.
WM 27, 38(a), 82, ECF No. 9. It nowhere alleges that Plaintiff could not perform any of
the work, itself, because of his disability or that Plaintiff was denied a reasonable
accommodation to help him perform the job. In fact, the affidavit attached to the
Amended Complaint avers that, when Plaintiff was tasked with moving heavy paper, he
requested and received assistance from porters. Payton Aff., ECF No. 9-1 at PAGEID
#217. The Court therefore does not construe the Amended Complaint as raising a
failure-to-accommodate claim.
3 Moreover, Title II “does not permit public employees or supervisors to be sued
in their individual capacities[,]” Williams v. McLemore, 247 F. App’x 1, 8 (6th Cir.
2007), but it does sometimes abrogate states’ sovereign immunity, United States
v. Georgia, 546 U.S. 151, 159 (2006) (“[I]nsofar as Title Il creates a private cause
of action for damages against the States for conduct that actually violates the
Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”
(emphasis in original)). Because Plaintiff fails to allege that he was discriminated
against due to his disability, though, there is no need to further define the scope
of his Title II discrimination claim. Haas v. Quest Recovery Servs., Inc., 247 F.
App’x 670, 673 (6th Cir. 2007) (“[WJe conclude that the Amended Complaint fails
to state a claim under Title Il of the ADA. In light of this determination, we need
not reach the remaining prongs of the Georgia analysis.”).
Case No. 2:25-cv-114 Page 7 of 12

Here, Plaintiff adequately alleges he is an individual with a disability. Am.
Compl. 7 16, ECF No. 9 (“The Plaintiff is a qualified individual with a recognized
and recorded disability of heart disease (cardiovascular) with a defibrillator.”).
But the Amended Complaint fails to allege that Plaintiff was
“excluded from participation in or . . . denied the benefits of’ his OPI job. Rather,
the Amended Complaint suggests that Plaintiff continued to work at the PS and
retained his pay grade, longevity, incentives, and personal and sick leave,
despite being subjected to harassment during work. See generally Am. Compl.,
ECF No. 9.
Additionally, although the Amended Complaint certainly alleges that
Plaintiff was discriminated against, it nowhere alleges he was discriminated
against because of his disability. Rather, the Amended Complaint alleges
vehemently and repeatedly that Plaintiff was discriminated against because of his
race (Caucasian) and his prior settlement. E.g., id. JJ] 29 (‘[T]he Plaintiff had
been reassigned to the PS and immediately began experiencing racist remarks
directed toward him about his settlement, his pay grade ‘7’, and being allowed to
return to OPI by other inmates, and being white.”), 38(b) (alleging “almost daily
racist and degrading remarks”), J 38(c) (“The harassment was based on the
worker’s protected status: Based on Race, the majority of racist remarks came
from other black workers. . . . Add to that anger from the inmates about the
Plaintiff's status of pay, longevity and other program benefits ... .”). The
harassment, moreover, came from other inmates. /d. { 38(b) (“The names of the
Case No. 2:25-cv-114 Page 8 of 12

inmates responsible for this harassment and threats are listed in the
journal... .”). Although Plaintiff alleges throughout the Amended Complaint that
Defendants knew about his disability but nonetheless permitted the other inmates
to harass him and that the harassment caused him medical problems, he pleads
no facts suggesting that Defendants permitted the harassment because of
Plaintiff's disability. To the contrary, Plaintiff specifically alleges that Roe incited
inmates against Plaintiff out of a feeling of comradery with Dunn/because of
Plaintiff's prior lawsuit. Am. Compl. J 46 (“It is also well-known that a ‘Good Old
Boy’ network and attitude exists in jails and prisons between staff. . . .”); Aff.,
ECF No. 9-1 at PAGEID # 215 (“Roe said had you not won your lawsuit and it
been for the atty general you wouldn't be here.”).
Plaintiff has therefore failed to plead a disability discrimination claim under
Title Il of the ADA.
Plaintiff's objection suggests that he sought to raise in his original
Complaint an ADA hostile work environment claim. E.g., Obj. | 15, ECF No. 8.
The Court generously assumes he also tries to assert such a claim in the
Amended Complaint.
To the extent prisoners may assert hostile work environment claims under
Title Il of the ADA, Ross v. Anthony, No. 1:23-cv-527, 2023 WL 3944546, at *3
(W.D. Mich. June 12, 2023), Plaintiff's Amended Complaint fails to state such a
claim for the same reason it fails to allege an intentional discrimination claim: the
Amended Complaint does not allege that a hostile environment was created on
Case No. 2:25-cv-114 Page 9 of 12

account of Plaintiff's disability. Rather, he continuously pleads that the hostile
environment existed due to racism and the other inmates’ jealousy over Plaintiff's
pay grade. See generally Am. Compl., ECF No. 9.
But, on de novo review, the Court concludes that Plaintiff pleads a claim of
ADA retaliation.* As noted above, Plaintiff's Amended Complaint adequately
pleads that Roe incited—in retaliation for Plaintiff having previously sued other
ODRC employees—other inmates to harass Plaintiff. That prior lawsuit, itself,
involved claims of ADA failure to accommodate and ADA retaliation. See
generally Am. Compl., ECF No. 51 (Case No. 2:20-cv-4838). Accordingly,
Plaintiff essentially alleges that Roe incited Plaintiff's harassment in retaliation for
Plaintiff having previously engaged in the protected activity of suing over alleged
ADA violations. This states a claim for ADA retaliation. Cf. Cook v. Warren
Screw Prods., Inc., No. 24-1192, 2025 WL 933637, at *5 (6th Cir. Mar. 27, 2025)
(“To establish a prima facie case of retaliation under the ADA, a plaintiff must
show that she engaged in a protected activity, that her employer knew about it,
and that the employer took adverse action against her because she engaged in
the protected activity.” (citation omitted)); Guess v. St. Martinus Univ., No. 21-

4 The Court also considered an ADA interference claim, but the facts alleged fit more
closely with a claim of retaliation. In any event, the differences between an ADA
retaliation claim and an ADA interference claim are unclear, and both require the same
causation. See e.g., Canter v. Disability Network W. Mich., No. 22-1856, 2023 WL
5627318, at *3 n.1 (6th Cir. Aug. 31, 2023) (“Because Canter does not differentiate
between retaliation and interference, much less rely on any such distinction to argue
that an interference claim could succeed even where a retaliation claim might fail (or
vice versa), we do not consider any potential differences between retaliation and
interference under the ADA.”).
Case No. 2:25-cv-114 Page 10 of 12

1478, 2022 WL 1224555, at *4 (6th Cir. Apr. 26, 2022) (“He sufficiently pleaded
that he engaged in a protected activity (the filing of a lawsuit) . . . .” (citation
omitted)).
For largely the same reasons, the Court also construes the Amended
Complaint as raising a First Amendment retaliation claim via 42 U.S.C. § 1983
against Roe in both his individual and official capacities.
But the Amended Complaint lacks any allegations against Arledge or
Bierbaugh making plausible that they took any actions against Plaintiff because
of his prior lawsuit. Accordingly, the Amended Complaint fails to allege either an
ADA retaliation or a First Amendment retaliation claim against Arledge or
Bierbaugh.
IV. CONCLUSION
For the above reasons, Plaintiff may proceed on his § 1983 Eighth
Amendment deliberate indifference claims against Roe, Arledge, and Bierbaugh,
based on their alleged failure to protect Plaintiff from Strunk’s attack. He may
pursue those claims against Defendants in their individual capacities and against
Arledge and Bierbaugh in their official capacities (for only declaratory and
injunctive relief). Plaintiff may additionally proceed against Roe on his retaliation
claims under § 1983 (First Amendment) and the ADA.°

5 Whether Roe can be sued in his individual capacity on an ADA retaliation claim and
whether sovereign immunity has been abrogated on an ADA retaliation claim can be
fleshed out with further briefing. The Court reiterates, however, that Plaintiff does not
sue any Defendant in their official capacities for damages. Am. Compl. | 4, ECF No. 9.
Case No. 2:25-cv-114 Page 11 of 12

The Amended Complaint either does not contain or the Court dismisses:
ADA discrimination or hostile work environment claims, Title VII claims,
Fourteenth Amendment Due Process claims, and any Eighth Amendment
deliberate indifference claims based on the medical care Plaintiff received after
Strunk’s attack. Nor may Plaintiff seek injunctive relief against Roe. Plaintiff is
also denied leave to litigate the remainder of this case in forma pauperis.
Although the R&R is directed toward the original Complaint, the Court
ADOPTS the analyses and conclusions contained therein as applicable to the
Amended Complaint, over Plaintiff's objection but only to the extent consistent
with this Opinion and Order. The Clerk shall TERMINATE ECF Nos. 4 and 7.
IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

Case No. 2:25-cv-114 Page 12 of 12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11052697. Public record. Not legal advice.