Garrison

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

STEPHEN M. GARRISON, CASE NO. 24 CV 1614

Plaintiff,

v. JUDGE JAMES R. KNEPP II

OHIO DEPARTMENT OF

REHABILITATION & CORRECTIONS,

et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Pro se Plaintiff Stephen M. Garrison brings this 42 U.S.C. § 1983 action against

Defendants Ohio Department of Rehabilitation & Corrections (“ODRC”), Corrections Officer

Case Hoffman, Lieutenant Douglas Yingling, Certified Nurse Practitioner Jodie Slone, and Officer

Caleb Rose. See Docs. 1, 4, 15.1 Plaintiff filed his original complaint on September 20, 2024 (Doc.

1), followed by two supplements that expanded upon the facts alleged (Docs. 4, 15).2 He brings

claims of excessive force, deliberate indifference to medical needs, and retaliation. See Docs. 1, 4,

15. All Defendants moved to dismiss for lack of subject matter jurisdiction. (Doc. 21, at 7-11; Doc.

1. Plaintiff originally identified the individual Defendants by their last names and titles (see Doc.

1); Defendants identified their full names in their respective motions to dismiss (Docs. 21, 28). In

his second supplement, Plaintiff identified as Defendants: (1) ODRC; (2) Hoffman, (3) Yingling,

(4) Slone, and (5) “[a]dditional C.O. name unknown who acted with unjust force & malice prior

to Hoffman’s arrival.” (Doc. 15, at 2). Shortly thereafter, Plaintiff filed a proposed summons for

Rose, who he indicated was “previously John Doe.” (Doc. 20). The Court construed these filings

as a motion to substitute/add Rose as the previously-unidentified correctional officer Defendant

and granted that motion. (Doc. 25).

2. The Court previously granted Plaintiff’s Motion to Amend his Complaint to include the

allegations in these additional supplements. (Doc. 25, at 2).

28, at 7-11).3 In the alternative, Defendants move to dismiss several claims for failure to state a

claim upon which relief can be granted. (Docs. 21, 28). Plaintiff filed an opposition (Doc. 30), and

Defendants replied (Doc. 31).4 Jurisdiction is proper under 28 U.S.C. § 1331.

For the reasons set forth below, the Court DENIES Defendants’ Motions to Dismiss for

lack of subject matter jurisdiction but GRANTS the Motions to Dismiss for failure to state a claim

as to the retaliation claim against all Defendants, the excessive force claim against Rose, and all

claims against ODRC. This case will proceed on Plaintiff’s excessive force claims against

Hoffman and Yingling and deliberate indifference claim against Slone.

BACKGROUND

Factual Allegations

The facts presented in the Amended Complaint are accepted as true for the purposes of a

motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Those facts are as follows.

Plaintiff alleges that on October 31, 2023, while incarcerated at Marion Correctional

Institution, he had a “very bad reaction” to a drug, which caused him to become “erratic” and

to“[f]lail[] [his] arms [and] legs [and] yell[] incoherently.” (Doc. 15, at 4). Hoffman arrived and

“immediately jumped on” Plaintiff, “pushing his knee into [Plaintiff’s] back” and “trying to force

3. Defendants ODRC, Hoffman, Yingling, and Slone filed a joint Motion to Dismiss on March 28,

2025. (Doc. 21). Following later service, Rose filed a separate Motion to Dismiss on April 29,

2025. (Doc. 28). All Defendants are represented by the same counsel, and the Motions make

several identical arguments. The Court therefore addresses the Motions together.

4. Plaintiff subsequently filed a “Response to Defendants[’] Reply.” (Doc. 32). The Court’s rules

allow for a motion, opposition, and reply. See Loc. Civ. R. 7.1. No additional briefing is authorized

under this Court’s Local Rules. “[C]ourts agree that neither local rules . . . nor the Federal Rules

of Civil Procedure authorize a non-moving party to file a sur-reply, and that to file a sur-reply the

party must obtain leave of the court.” Eberhard v. Chicago Title Ins. Co., 2014 WL 12756822, at

*2 (N.D. Ohio) (collecting cases). Because Plaintiff did not seek leave of Court, his additional

filing is not properly before the Court.

[his] arms out from under [him].” Id. Plaintiff asserts a correctional officer to his left (later

identified as Rose) “got [his] left arm out” and Hoffman was on top of him. Id. Hoffman and

Correctional Officer Jones (who is not a Defendant in the current action) pulled his right arm out

from under him; Hoffman “torqued” that arm, “forcing [Plaintiff’s] right hand up so far between

[his] shoulder blades” that his right elbow “snapped.” Id. Plaintiff is unsure which officer shackled

him, or which “repeatedly kneed [his] left leg, causing a bruise to cover [his] entire thigh.” Id.

Plaintiff asserts “[t]hey then dragged” him down two flights of stairs while his arm was in extreme

pain. Id. Defendant Yingling and Correctional Officer Pack (who is not a Defendant in the current

action) then escorted him down a hallway, with Pack on the left and Yingling on the right. Id. It

was difficult for Plaintiff to walk because his feet had been “stomped on” and his thigh hurt “from

being kneed repeatedly.” Id. The officers “dragged him down the hallway,” and Yingling “put[]

more torque and pressure” on Plaintiff’s right arm “with complete disregard” for Plaintiff’s claims

of pain. Id. When Plaintiff arrived at the medical unit he was “screaming in pain.” Id. Yingling

caused Plaintiff additional pain in the process of removing his cuffs and shackles. Id. at 5.

Plaintiff contends he did not receive proper treatment for his broken elbow at his initial

encounter with the ODRC medical unit. Id. at 5-7. He asserts the nurses did not take him seriously

or give him anything for the pain, but he was ultimately provided ibuprofen twice that day and

received an x-ray the following day. Id. at 6. Two days after Plaintiff’s initial encounter with the

medical unit, Slone told him he had a fractured elbow and he was given a splint, ace bandages, and

a sling, but insufficient pain medication. Id. He asserts his elbow “should have been properly cast”

and the injury worsened due to the delayed treatment, resulting in the need for surgery. Id. From

the time of his injury through December 20, 2023, Plaintiff was given ibuprofen and Tylenol three

times per day and received four x-rays, each of which made it “obvious the facture was separating

more and more; getting worse.” Id. Plaintiff asserts Slone told him she was “unable to do anything”

and he “just had to deal with it.” Id. By December 20, the fracture had separated an inch and Slone

referred him for surgery, which occurred on December 27, 2023. Id. The surgery involved a plate

and eight screws. Id. Plaintiff now has a “deformed” elbow and a twelve-inch scar. Id. Plaintiff

further asserts he has PTSD, lasting pain, and exacerbation of preexisting issues in his right

shoulder, neck, and back. Id. at 7.

Plaintiff additionally claims he was subject to retaliation. Id. at 7-10. Plaintiff identifies

multiple incidents he classifies as retaliation, including: ORDC staff did not properly care for his

personal property; he was subjected to harassment; he experienced difficulty when trying to access

public records from ODRC staff; he had problems with the mail room; and his requests to speak

with police departments and other agencies regarding his claims of excessive force were denied.

Id.

Plaintiff brings claims under 42 U.S.C. § 1983 for excessive force and deliberate

indifference to medical needs under the Eighth Amendment and retaliation under the First

Amendment. See Docs. 1, 4, 15.

Procedural Background

As noted above, Plaintiff filed his original Complaint in this case on September 20, 2024.

(Doc. 1).

On November 21, 2024, Plaintiff filed an analogous pro se complaint in the Ohio Court of

Claims where he listed ODRC, Marion Correctional, Yingling, Hoffman, and Slone as defendants.

(Doc. 21-1, at 1). Plaintiff used a standardized “claim form” to provide facts involving his

allegations of excessive force on October 31, 2023, lack of adequate treatment for his alleged

injury, and retaliation. Id. at 2. Plaintiff’s claim form contains details about his claimed damages,

which include his broken elbow, the surgery for his elbow, and the worsening of preexisting

conditions in his right shoulder, lower back, and neck. Id. On January 24, 2025, Plaintiff filed a

subsequent amended complaint in the Court of Claims. (Doc. 21-5). This amended complaint is

largely identical to the second supplement filed in the instant case. Compare Doc. 15, with Doc.

21-5. The Ohio Court of Claims has stayed its action. See Doc. 21-4.

STANDARD OF REVIEW

“The district courts of the United States . . . are courts of limited jurisdiction. They possess

only that power authorized by Constitution and statute.” Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 552 (2005) (internal quotation marks and citation omitted). Dismissal under

Fed. R. Civ. P. 12(b)(1) is required where a court does not possess the necessary subject matter

jurisdiction to hear a claim. There are two categories of challenges to subject matter jurisdiction:

facial attacks and factual attacks. Carr v. Arrowhead MHC, LLC, 518 F. Supp. 3d 1018, 1021

(N.D. Ohio 2021). A facial attack challenges the sufficiency of the pleadings, while a factual attack

challenges “the factual existence of subject matter jurisdiction.” U.S. v. Ritchie, 15 F.3d 592, 598

(6th Cir. 1994). For a factual attack, the court does not presume the Plaintiff’s assertions are true;

instead, “the court is free to weigh the evidence and satisfy itself as to the existence of its power

to hear the case.” McCausland v. Charter Twp. of Canton, 2024 WL 3045525, at *3 (6th Cir.)

(citation modified).

Under Federal Rule of Civil Procedure 12(b)(6), a party may move for dismissal of a

complaint for “failure to state a claim upon which relief can be granted.” Although a complaint

need not contain “detailed factual allegations,” it must contain more than just “labels and

conclusions” or a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Therefore, to survive a 12(b)(6) motion, 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). “A claim has facial plausibility when the

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

defendant is liable for the misconduct alleged.” Id.

Pro se pleadings are held to less stringent standard than pleadings written and drafted by

lawyers. El Bey v. Roop, 530 F.3d 407, 413 (6th Cir. 2008). However, the “lenient treatment

generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.

1996). The liberal construction accorded to pro se litigants does not “abrogate basic pleading

essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The Court is not required to

“conjure up unpleaded facts” or create claims for pro se plaintiffs. Grinter v. Knight, 532 F.3d 567,

577 (6th Cir. 2008) (citation modified); Bassett v. Nat’l Coll. Athletic Ass’n, 528 F.3d 426, 437

(6th Cir. 2008). Instead, a pro se plaintiff’s pleadings must offer fair notice to the defendants of

what plaintiff’s claims are and the grounds they are asserted under. Lillard v. Shelby Cnty. Bd. of

Educ., 76 F.3d 716, 724 (6th Cir. 1996). The complaint still must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Barnett v. Luttrell, 414 F.

App’x 784, 786 (6th Cir. 2011) (quoting Iqbal, 556 at 678).

DISCUSSION

Defendants present two arguments for dismissal. First, they move to dismiss for lack of

subject matter jurisdiction, asserting Plaintiff waived his claims in this case by filing a claim in the

Ohio Court of Claims based on the same facts. See Doc. 21, at 7-11; Doc. 28, at 7-11. Alternatively,

Defendants move to dismiss Plaintiff’s retaliation claims, his excessive force claim against Rose,

and his claims against ODRC for failure to state a claim upon which relief can be granted. See

Doc. 21, at 11-13; Doc. 28, at 11-15. As set forth below, the Court finds Plaintiff did not

knowingly, intelligently, and voluntarily waive his claims, but agrees Defendants are entitled to

dismissal of the retaliation claims, Rose is entitled to dismissal of the excessive force claim, and

that ODRC is immune from suit.

Motion to Dismiss for Lack of Subject Matter Jurisdiction / Leaman Doctrine

Defendants first move to dismiss based on Plaintiff’s filing of an analogous claim in the

Ohio Court of Claims. They contend Plaintiff knowingly waived his right to file this federal suit

when he filed his claim in the Ohio Court of Claims. In response, Plaintiff argues he was not aware

that filing a claim in the Ohio Court of Claims waived his right to file a suit in federal court and

contends there is no valid waiver. See Doc. 30, at 3.

Pursuant to Ohio Revised Code § 2743.02(A)(1), “filing a civil action in the court of claims

results in a complete waiver of any cause of action, based on the same act or omission, that the

filing party has against any officer or employee.” The Sixth Circuit has held this statute creates a

“quid pro quo in which the state agreed to forego its sovereign immunity in exchange for the

plaintiff’s waiver of claims against the state’s employees.” Turker v. Ohio Dept. of Rehab & Corr.,

157 F.3d 453, 457 (6th Cir. 1998) (citing Leaman v. Ohio Dep’t of Mental Retardation & Dev.

Disabilities, 825 F.2d 946, 954 (6th Cir. 1987) (en banc)). And the Sixth Circuit has “consistently

applied Leaman to bar plaintiffs from bringing suit in federal court against a state employee after

bringing suit against the state in the Court of Claims based on the same claim.” Plinton v. Cnty. of

Summit, 540 F.3d 459, 463 (6th Cir. 2008) (collecting cases).

Nevertheless, for § 2743.02(A)(1) to preclude a plaintiff’s right to sue, the Sixth Circuit

has explained the waiver must be “knowing, intelligent, and voluntary.” Leaman, 157 F.3d at 457.

“Where a plaintiff was represented by competent counsel before the Ohio Court of Claims, a

waiver can be presumed to be knowing, intelligent, and voluntary.” Harris v. Sowers, 2024 WL

3051285, at *5 (6th Cir.) (first citing Leaman, 825 F.2d at 956-57, and then citing Kajfasz v.

Haviland, 55 F. App’x 719, 721 (6th Cir. 2003)). There is no such presumption where, as here, a

plaintiff is proceeding pro se. Id. Instead, “the district court must make a ‘factual finding as to

whether [the plaintiff] knowingly, intelligently, and voluntarily waived his right to proceed in

federal court.’” Id. (quoting Kajfasz, 55 App’x at 722).

“To determine whether Plaintiff knowingly, intelligently, and voluntarily waived his

claims, the Court may consider a ‘pro se plaintiff’s prior litigation experience, the coherency of

his filings in both the federal and Court of Claims matters, and whether the litigant referenced the

statutory waiver provision in the filings.’” Smith v. Chambers-Smith, 2024 WL 5075378, at *5

(N.D. Ohio) (quoting Troche v. Crabtree, 2014 WL 2211012, at *3 (S.D. Ohio)). A waiver “may

be deemed valid if the defendant establishes that the ‘plaintiff was familiar with the Court of

Claims Act.’” Harris, 2024 WL 3051285, at *5 (quoting Russell v. Heineman, 992 F.2d 1217 (6th

Cir. 1993) (table)). If a pro se litigant directly refers to the waiver provision in § 2743.01(A)(1), it

is more likely a knowing waiver will be found. Id. But “a defendant’s failure to offer ‘convincing

evidence’ that a plaintiff was ‘familiar with the waiver provision of the Ohio Court of Claims Act’

undermines a defendant’s argument for waiver under the Leaman doctrine.” Smith, 2024 WL

5075378, at *6 (quoting Harris, 2024 WL 3051285, at *6).

With these principles in mind, the Court turns to Defendants’ argument and the relevant

factors.

Plaintiff’s Prior Litigation Experience / Coherency of Filings

Defendants cite Plaintiff’s prior litigation experience (two Southern District of Ohio

habeas corpus petitions and an appeal to the Sixth Circuit) and his filings in the present case to

argue Plaintiff is an experienced litigator. See Doc. 21, at 9-10; Doc. 28, at 9-10. Defendants further

suggest Plaintiff’s filings in the present case and the Ohio Court of Claims case are coherent and

“demonstrate experience and intelligence in the law.” (Doc. 21, at 9); (Doc. 28, at 9). In opposition,

Plaintiff maintains he is “learn[ing] as [he] goes” and has no prior knowledge of the Leaman

doctrine or the statutory waiver provision. (Doc. 30, at 3).

Although Plaintiff’s filings demonstrate a basic understanding of the procedural nature of

his cases, they do not demonstrate a substantive understanding of the Ohio Court of Claims waiver

provision. Smith, 2024 WL 5075378, at *6 (“Defendants do not offer convincing evidence that

Plaintiff was familiar with the waiver provision.”). Plaintiff’s initial listing of Defendants

Yingling, Hoffman, and Slone in his initial Court of Claims complaint suggests he lacked

knowledge of the Ohio Court of Claims Act at the time of filing because “[t]he only defendant in

original actions in the court of claims is the state.” Ohio Rev. Code § 2743.02(E). See Doc. 21-1,

at 1. Moreover, Plaintiff’s initial Complaint here as well as his Court of Claim complaint, were

filed on template complaint forms which prompted the required information. See Docs. 1, 21-1.

The prompted nature of these filings does not constitute “convincing evidence” that Plaintiff has

expertise in the law. See Smith, 2024 WL 5075376, at *5 (explaining that setting forth claims on a

standardized form does not demonstrate greater sophistication than a typical pro se plaintiff).

Plaintiff’s Reference to Statutory Waiver in the Filings

In their reply brief, Defendants assert Plaintiff has knowledge and understanding of the

Court of Claims waiver provision because he cited it in his opposition brief. (Doc. 31, at 2).

However, Plaintiff only cites the Ohio Court of Claims once in the entirety of his filings, and only

in response to the argument raised by Defendants’ Motions to Dismiss. See Doc. 30, at 7.

Under the above facts, the Court finds Defendants have not provided “convincing

evidence” that Plaintiff understood the waiver provision of the Ohio Court of Claims Act. As such,

Defendants’ request to dismiss all claims pursuant to the Leaman doctrine is denied without

prejudice.5

Motion to Dismiss for Failure to State a Claim and Immunity

In the alternative, Defendants move to dismiss several of Plaintiff’s claims for failure to

state a claim upon which relief can be granted. First, Defendant Rose asserts Plaintiff failed to

plead a plausible excessive force claim against him. (Doc. 28, at 11-13). Second, all Defendants

maintain Plaintiff has not stated a plausible retaliation claim against any Defendant. (Doc. 21, at

11-12; Doc. 28, at 13-14). Finally, Defendants argue ODRC is entitled to immunity. (Doc. 21, at

12). For the following reasons, the Court agrees on all three arguments.

Excessive Force

Rose asserts Plaintiff failed to assert a plausible excessive force claim for which relief can

be granted against him. (Doc. 28, at 11-13). Specifically, Rose argues Plaintiff failed to allege any

facts which could plausibly link him to an excessive force claim. Id. at 13. Rose maintains the only

facts about his actions specifically display he was merely gaining control of Plaintiff’s left arm at

the time of the incident on October 31, 2023. Plaintiff does not respond to this argument. See Doc.

30. For the reasons set forth below, the Court finds Rose is entitled to dismissal.

A § 1983 claim requires a plaintiff to plead two elements: “(1) deprivation of a right secured

by the Constitution or laws of the United States (2) caused by a person acting under color of state

law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing

McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 463 (6th Cir. 2006)). To satisfy the second

5. After discovery, Defendants may raise this argument at summary judgment if new evidence

establishes Plaintiff made a knowing, voluntary, and intelligent waiver. See Smith, 2024 WL

5075378, at *6 n.5.

element, a plaintiff must allege “personal involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th

Cir. 2008) (citation omitted).

The Eighth Amendment forbids “cruel and unusual punishment.” U.S. Const. amend. VIII;

Whitley v. Albers, 475 U.S. 312, 320, 21 (1986). Like in Eighth Amendment claims in other

contexts, an excessive force claim under the eighth amendment requires a prisoner to make

sufficient showings under both objective and subjective standards. See, e.g., Moore v. Holbrook,

2 F.3d 697, 700 (6th Cir. 1993). The subjective aspect of an excessive force claim pertains to a

prison official’s state of mind; a court inquires “whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”

Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley, 475 U.S. at 320-21). The Court

considers factors such as “the need for the application of force, the relationship between the need

and the amount of force that was used, [and] the extent of injury inflicted.” Whitley, 475 U.S. at

321 (alteration in original) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)).

Courts may take account of the circumstances “as reasonably perceived by the responsible

officials on the basis of the facts known to them, and any efforts made to temper the severity of a

forceful response.” Id. However, deference is granted to prison officials in an excessive force

analysis where such officials acted to execute a policy believed to be necessary to preserve internal

order, discipline, and security. See id. at 321-22. “[N]ot every malevolent touch by a prison guard

gives rise to a federal cause of action,” and de minimis uses of physical force that are “not of a sort

repugnant to the conscience of mankind” do not violate the Eighth Amendment. Wilkins v. Gaddy,

559 U.S. 34, 37-38 (2010) (alteration in original) (quoting Hudson, 503 U.S. at 9-10).

Plaintiff’s only specific factual allegation as to Rose is that he “got [Plaintiff’s] left arm

out” while officers attempted to restrain Plaintiff, who, in his own words was having a “very bad

reaction” to a drug he took, was “erratic,” and was “[f]lailing [his] arms [and] legs [and] yelling

incoherently.” (Doc. 15, at 4). Plaintiff specifically identifies Defendant Hoffman as the “one who

broke [his right] arm” and Defendant Yingling as causing him further pain, but does not

specifically allege any other facts as to Rose. Id. at 4-5. Plaintiff has therefore not plausibly

identified actions by Rose that are “of a sort repugnant to the conscience of mankind” so as to

violate the Eighth Amendment. Wilkins, 559 U.S. at 38 (quoting Hudson, 503 U.S. at 10). Nor

does Plaintiff allege any facts to suggest Rose applied any force “maliciously and sadistically for

the very purpose of causing harm.” Hudson, 503 U.S. at 6 (quoting Whitley, 475 U.S. at 320).

For these reasons the Court grants Rose’s Motion to Dismiss as to the excessive force claim

against him.

Retaliation

All Defendants maintain Plaintiff failed to allege a plausible retaliation claim because he

failed to allege he was engaged in any protected conduct for which he was retaliated against and

failed to “’connect the dots’ between [any such] protected conduct and the adverse action.” (Doc.

21, at 11-12; Doc. 28, at 13-14). They thus contend his allegations are too conclusory to state a

retaliation claim. (Doc. 21, at 12; Doc. 28, at 14). In opposition, Plaintiff continues to list various

instances of adverse treatment by various prison officials and characterizes such treatment as

retaliatory. See Doc. 30, at 11-15. For the reasons set forth below, the Court finds Defendants are

entitled to dismissal of Plaintiff’s retaliation claims.

For a plaintiff to succeed on a claim of retaliation, he must show: “(1) he engaged in

protected conduct, (2) an adverse action was taken against him that would ‘deter a person of

ordinary firmness from continuing to engage in that conduct,’ and (3) ‘the adverse action was

motivated at least in part by [his] protected conduct.’” Djonovic v. Septer, 2025 WL 1005122, at

*2 (6th Cir.) (alteration in original) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

2005) (en banc)). “Protected conduct” includes things such as a prisoner’s “undisputed First

Amendment right to file grievances against prison officials on his own behalf.” Herron v.

Harrison, 203 F.3d 410, 415 (6th Cir. 2000). But “conclusory allegations of retaliatory motive

unsupported by material facts will not be sufficient to state a . . . claim.” Hill v. Lappin, 630 F.3d

468, 580 (6th Cir. 2005) (alteration in original) (quoting Harbin–Bey v. Rutter, 420 F.3d 571, 580

(6th Cir. 2005)).

Here, although Plaintiff alleges various actions which he claims are “retaliation,” he fails

to plead the first or third element of such a claim. First, Plaintiff fails to plead that he engaged in

any “protected conduct.” Prior to his assertions that he has been subject to “retaliation,” the only

facts in Plaintiff’s Complaint and supplements thereto are those surrounding the alleged excessive

force incident on October 31, 2023, and subsequent medical treatment. See Doc. 15, at 3-7. Even

liberally construed, nothing about these allegations (that Plaintiff had a bad reaction to a drug,

excessive force was used, inadequate treatment was provided) suggests “protected conduct” within

the meaning of the First Amendment. Plaintiff’s First Amendment retaliation claims fail for this

reason alone. Furthermore, Plaintiff does not allege any causal connection between any protected

conduct and the adverse actions of which he complains. As such, he has not plausibly alleged the

first or third elements of a retaliation claim because he offers nothing more than “[c]onclusory

allegations of retaliatory motive unsupported by material facts.” Hill, 630 F.3d at 580 (quoting

Harbin–Bey, 420 F.3d at 580).

Eleventh Amendment / Sovereign Immunity

ODRC argues it is entitled to sovereign immunity under the Eleventh Amendment. (Doc.

In response, Plaintiff maintains he named ODRC as the employer, and his claims are primarily

with the other named Defendants employed by ODRC. (Doc. 30, at ¶ 34).

Although many courts and parties use Eleventh Amendment Immunity and common-law

sovereign immunity interchangeably, they are distinct concepts. WCI, Inc. v. Ohio Dep’t of Pub.

Safety, 18 F.4th 509, 513 (6th Cir. 2021). While Eleventh Amendment immunity is rooted within

subject-matter jurisdiction and contains a diversity requirement, state sovereign immunity sounds

in personal jurisdiction and “refers to a state’s right ‘not to be amenable to the suit of an individual

without its consent.’” Id. at 513-14 (quoting The Federalist No 81., at 496 (Alexander Hamilton)

(Clinton Rossiter ed., 1961)). Here, although Defendants rely on the Eleventh Amendment,

because Plaintiff is an Ohio prisoner suing an Ohio state entity sovereign immunity is the

applicable doctrine.

There are three exceptions to sovereign immunity: (1) “states may consent to suit in federal

court through unambiguous statutory language or conduct in litigation,” (2) Congress may

abrogate state sovereign immunity, and (3) the Ex parte Young doctrine. Rives v. Univ. of Tenn.,

2024 WL 5103829, at *4 (6th Cir.) (citations omitted). Defendants argue none apply here.

First, for a state to waive its immunity it must have constructed an “unequivocally

expressed” waiver in the text of the relevant statute. Sossamon v. Texas, 563 U.S. 277, 284 (2011).

A waiver of sovereign immunity “will be strictly construed, in terms of its scope, in favor of the

sovereign.” Id. at 285 (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Ohio has not waived its

sovereign immunity for 42 U.S.C. § 1983 claims in federal court. See Wolfel v. Morris, 972 F.2d

712, 718 (6th Cir. 1992); Lee Testing & Eng’g, Inc. v. Ohio Dep’t of Transp., 855 F. Supp. 2d 722,

726 (S.D. Ohio 2012). For these reasons, this exception does not apply.

Second, although “Congress can abrogate a State’s sovereign immunity to enforce the

Fourteenth Amendment[,]” “it did not do so when it enacted § 1983.” Mikel v. Quin, 58 F.4th 252,

256 (6th Cir. 2023) (citing Quern v. Jordan, 440 U.S. 332, 342-43 (1979)). The second exception

thus also does not apply.

Third, Ex parte Young, 209 U.S. 123 (1908), established a limited exception to sovereign

immunity for declaratory and prospective injunctive relief compelling state officials to comply

with federal law. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). However, this

exception “does not permit judgments against state officers declaring that they violated federal law

in the past” and “has no application in suits against the States and their agencies.” P.R. Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citations omitted). Plaintiff does

not seek prospective relief, but only compensation for past harm. As such, the Ex parte Young

exception does not apply.

For the aforementioned reasons, the Court agrees with Defendants that ODRC is entitled

to dismissal on the basis of Eleventh Amendment/sovereign immunity.

In sum, the Court denies Defendants’ request to dismiss this case in its entirety for lack of

subject matter jurisdiction, but grants dismissal as to Plaintiff’s (1) retaliation claims, (2) excessive

force claim against Rose, and (3) claims against ODRC. This case will proceed on Plaintiff’s

excessive force claims against Hoffman and Yingling and deliberate indifference claim against

Slone.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants ODRC, Hoffman, Yingling, and Slone’s Motion to Dismiss

(Doc. 21) be, and the same hereby is, GRANTED IN PART AND DENIED IN PART, as set forth

herein; and it is

FURTHER ORDERED that Defendant Rose’s Motion to Dismiss (Doc. 28), be and the

same hereby is, GRANTED IN PART AND DENIED IN PART, as set forth herein.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: December 31, 2025