Petition for Writ of Certiorari — Daniel P. McKinney, Petitioner v. John R. Kasich, Governor of Ohio, et al.

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APPENDIX

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 16-3344

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Sep 29, 2017

DEBORAH S. HUNT, Clerk

DANIEL P. MCKINNEY,

Plaintiff-Appellant,

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF

OHIO

JOHN R. KASICH, Governor, et al.,

Defendants-Appellees.

ORDER

Before: ROGERS, GRIFFIN, and KETHLEDGE, Circuit Judges.

Daniel P. McKinney, a pro se Ohio prisoner, appeals a district court judgment dismissing

his civil rights complaint filed pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, as well as state

law. This case has been referred to a panel of the court that, upon examination, unanimously

agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In May 2015, McKinney sued Ohio Governor John R. Kasich; Director Gary Mohr of the

Ohio Department of Rehabilitation and Corrections ("ODRC"); ODRC Chief Inspector Roger

Wilson; former ODRC Chief Inspector Gary Croft; former ODRC Health Care Administrators

Cindy Lawson and Kristine Edwards; the former Ohio State University Medical Center

("OSUMC") Director; Institutional Inspector Joanna Factor for the Allen/Oakwood Correctional

Institution ("AOCI"); ODRC contract physicians Chai-Lin, Perez, and Payne; ODRC Assistant

Health Care Administrator Rable; and ODRC legal consultant/contractor Anne B. Strait.

No. 16-3344

-2McKinney sued the defendants in both their individual and official capacities, claiming that they

violated his Eighth Amendment rights and state law by conspiring to deny him access to certain

diagnostic procedures and adequate medical treatment for a knee injury he suffered prior to his

incarceration.

McKinney alleged that staff at the Lebanon Correctional Facility began treating his knee

injury in 2004, and that they provided him with prescription medication for his injury but

declined to conduct additional diagnostic examinations on his knee, even though he had provided

defendant Lawson with the results of a previous MRI showing structural damage to his knee. He

alleged that Lawson declined to include the MRI in his medical file and declined to approve

follow-up procedures and diagnostic tests. In 2012, medical staff at AOCI saw McKinney for

complaints related to his knee injury, but declined to conduct additional diagnostic exams.

Thereafter, McKinney alleged that he fell as a result of his knee injury, and that his knee was

"visibly grotesquely swollen." AOCI staff diagnosed his knee as arthritic, but did not conduct an

x-ray until several days later. He alleged that staff ignored his initial request for medical

treatment, but that he was eventually seen by medical staff two days after his March 24, 2014

request for medical treatment. Staff provided him with Ibuprofen, prescribed exercise and rest,

but declined to conduct any other diagnostic procedures or medical treatment. In addition,

defendant Perez allegedly advised McKinney that ODRC policy restricted inmates over forty

years old from receiving specialized medical diagnostic services and treatment, including

referrals to orthopedic specialists, specialized diagnostics, and corrective surgery. McKinney

filed a grievance that defendant Factor denied in April 2014. In May 2014, McKinney again fell

due to his knee condition and allegedly injured his arm, shoulder, and head. However, prison

staff allegedly ignored his formal request for medical treatment.

The defendants moved to dismiss the complaint and McKinney opposed the motion. A

magistrate judge filed two reports recommending that the district court grant the defendants'

motions to dismiss, reasoning that: (1) defendant Straight was entitled to prosecutorial immunity

for her role in preparing a motion for summary judgment in connection with McKinney's

medical malpractice claim in the Ohio Court of Claims (McKinney v. ODRC, Case No. 2014-

No. 16-3344

-300571); (2) defendant Payne was entitled to witness immunity for his role in providing an

affidavit in support of the motion for summary judgment that Straight prepared; (3) the RookerFeldman' doctrine barred McKinney's attempt to overturn the Ohio Court of Claims' ruling that

McKinney received adequate medical care; (4) McKinney's claims against the defendants in

their official capacities as state officials were not cognizable under. § 1983; (5) McKinney failed

to state a claim upon which relief could be granted against defendants Kasich, Mohr, Croft,

Wilson, Strait, Payne, Perez, Edwards, and the OSUMC Director in their individual capacities

because he did not state that they were personally involved in the alleged misconduct;

(6) McKinney failed to state an Eighth Amendment claim because the record reflects that he

received at least some medical treatment; (7) McKinney failed to state a claim for relief under

§§ 1985 and 1986 because he offered nothing more than conclusory assertions that the

defendants acted in concert; and (8) McKinney failed to allege a viable state-law claim against

the defendants in their individual capacities because he did not show that the Ohio Court of

Claims had determined that the defendants were not entitled to immunity under Ohio Revised

Code § 9.86. The district court overruled McKinney's objections, adopted the magistrate judge's

recommendations, and granted the defendants' motions to dismiss.

On appeal, McKinney argues that the district court erred when it dismissed his complaint

under Rule 12(b)(6) because: (1) McKinney's deliberate-indifference claim was not barred by

the Rooker-Feldman doctrine because he was not appealing the Ohio Court of Claims' ruling that

he had received adequate medical care; (2) defendant Straight was not entitled to prosecutorial

immunity and defendant Payne was not entitled to witness immunity because they conspired to

deprive him of adequate medical treatment by falsifying documents presented to the Ohio Court

of Claims; (3) he sufficiently stated claims against the defendants in their official capacities

because he alleged that they denied him adequate medical treatment based on a policy or custom

to deny forty-year-old inmates specialized medical treatment; (4) he sufficiently stated claims

against the defendants in their individual capacities because he alleged that they knowingly

'Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D. C. Court of Appeals v. Feldman, 460 U.S. 462

(1983).

No. 16-3344

-4acquiesced in the denial of adequate medical treatment; (5) he established that the defendants

provided "woefully inadequate" medical treatment and the district court focused solely on his

knee injury without addressing his claim that he was denied treatment for injuries to his back,

head, and shoulder; and (6) he established the required elements for pursuing conspiracy claims

under §§ 1985 and 1986. McKinney does not challenge the district court's determination that his

state-law claims against the defendants were barred by the personal immunity provided to state

employees set forth in Ohio Revised Code § 9.86. Therefore, that issue is abandoned and will

not be reviewed. See Post v. Bradshaw, 621 F.3d 406, 413-14 (6th Cir. 2010); Grace Cmly.

Church v. Lenox Twp., 544 F.3d 609, 618 n.1 (6th Cir. 2008).

We review de novo a district court's dismissal under Federal Rule of Civil Procedure

12(b)(6). Winget v. JP Morgan Chase Ban/c, N.A., 537 F.3d 565, 572 (6th Cir. 2008). To avoid

dismissal for failure to state a claim, "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 All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at

678.

We need not address the district court's conclusion that McKinney' s federal claims were

barred by the Rooker-Feldman doctrine.

We may affirm for the alternative reasons relied on by the district court, and a review of

the record before the district court reflects that McKinney failed to state a deliberate-indifference

claim against the defendants. An Eighth Amendment violation occurs if a prison official acts

with deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S.

97, 104 (1976); Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009). The

question of whether a prison official acted with deliberate indifference has both an objective and

a subjective component. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). To satisfy

the objective component, a prisoner must show the existence of a "sufficiently serious" medical

need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the subjective component, a

No. 16-3344

-5prisoner must show that the defendant knew that the inmate faced "a substantial risk of serious

harm and disregard[ed] that risk by failing to take reasonable measures to abate it." Id. at 847.

McKinney alleged that the defendants violated his rights under the Eighth Amendment by

failing to provide him with specialized treatment concerning his knee condition, including failing

to provide him with an MRI or CT scan, an arthroscopic exam, or a referral to an orthopedic

specialist. However, he acknowledged that Dr. Chai-Lin saw him on at least two occasions

following requests for medical attention related to his knee condition. Dr. Chai-Lin examined

McKinney on February 12, 2014, ordered or reviewed an x-ray, and diagnosed him with arthritis.

Dr. Chai-Lin examined McKinney again on March 26, 2014, and prescribed ibuprofen, exercise,

and rest. In addition, the defendants submitted a report prepared by Dr. Payne, who had

reviewed McKinney's medical records from 2004-2014. Dr. Payne opined that McKinney had

received reasonable medical care, including "medical examinations, X-rays, anti-inflammatory

and analgesic medications, knee support devices, activity limitations and accommodations and

numerous follow-up evaluations." McKinney does not dispute that he received the treatment

described by Dr. Payne. Rather, he argues that he should have been provided with additional

"specialized" treatment and a referral to an orthopedic specialist. McKinney' s argument that the

defendants subjected him to "woefully inadequate" treatment and that they should have provided

additional diagnostic tests or different types of treatment essentially amounts to allegations of

medical malpractice or negligent diagnosis. A plaintiff's challenge to the adequacy of the

medical treatment he received does not state a claim upon which relief can be granted. See

Graham ex rel. Estate of Graham v. Cly. of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004).

McKinney argues that the district court failed to address his claim that he was not treated

for injuries to his back, head, and shoulder. However, the record reflects that McKinney was

prescribed anti-inflammatories and analgesic medications for these conditions. As with his

claims concerning his knee condition, McKinney has not alleged facts sufficient to establish that

the defendants failed to provide at least some treatment for these other injuries.

Next, the district court properly dismissed McKinney' s claims against defendants Strait

and Payne. McKinney named Strait as a defendant because she prepared a motion for summary

No. 16-3344

-6judgment in defense of medical-treatment claims he presented in the Ohio Court of Claims. He

argued that the motion and documents presented in support of the motion contained falsified and

misrepresented facts. He also alleged that defendant Payne submitted an affidavit in support of

the motion for summary judgment that contained falsified material facts. Despite McKinney's

argument that these actions were taken in furtherance of an alleged conspiracy to deny him

adequate medical treatment, Strait was entitled to immunity for her role as an advocate when she

presented the state's defense during McKinney's state lawsuit. See Imbler v. Pachtman, 424

U.S. 409, 431 (1976); Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003). Likewise,

defendant Payne was entitled to immunity for his role as an expert witness during the legal

proceedings in the Ohio Court of Claims. See Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th

Cir. 1999).

The district court properly dismissed McKinney's claims against the defendants in their

official capacities. State officials are not considered persons for the purpose of a § 1983 claim

when sued in their official capacity for monetary damages. See Will v. Mich. Dep 't of State

Police, 491 U.S. 58, 71(1989). Even though McKinney alleged that defendants Chai-Lin and

Perez informed him that ODRC maintains a policy that denies specialized medical treatment to

inmates over forty years old, he has not identified any such ODRC policy governing medical

treatment available to inmates over forty years old. Moreover, he has not alleged facts indicating

that Governor Kasich, ODRC Director Mohr, Chief Inspectors Wilson or Croft, ODRC Health

Care Administrators Lawson and Edwards, or AOCI Institutional Inspector Factor adopted any

policy denying specialized treatment to inmates over forty.

The district court properly dismissed McKinney's individual-capacity claims against

Kasich, Mohr, Croft, Wilson, Strait, Payne, Perez, Edwards, and the OSUMC Director.

McKinney argues that the defendants can be held liable in their individual capacities because

they knowingly acquiesced in the denial of adequate medical treatment. However, his claims

were properly dismissed because McKinney did not allege that these defendants were personally

involved in his medical care or that they made any decisions to deny him medical treatment. See

Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008). Furthermore, although McKinney

No. 16-3344

-7argued that these defendants failed to take action after being advised of the alleged denial of

adequate medical treatment, the failure to act does not impute liability to a prison official. See

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

Finally, the district court properly dismissed McKinney's claims under §§ 1985 and

1986. In order to state a § 1985 claim, McKinney was required to allege the existence of: "(1) a

conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal privileges or immunities of the laws;

(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or

property or deprived of any right or privilege of a citizen of the United States." See Vakilian v.

Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (quoting United Bhd. of Carpenters & Joiners of Am.,

Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). McKinney failed to sufficiently allege the

existence of a conspiracy. "It is well-settled that conspiracy claims must be pled with some

degree of specificity and that vague and conclusory allegations unsupported by material facts

will not be sufficient to state such a claim." Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.

2003) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)). Despite McKimiey's

conclusory assertion that the defendants conspired to deprive him of specialized medical

treatment based on his age, he failed to allege facts sufficient to indicate "any sort of 'meeting of

the minds' or to link any of the alleged conspirators in a conspiracy to deprive him of his civil

rights." See Amadasu v. The Christ Hosp., 514 F.3d 504, 507 (6th Cir. 2008). The district court

properly determined that McKinney failed to state a claim under § 1986, which "is designed to

punish those who aid and abet violations of § 1985." See Haverstick Enters. v. Fin. Fed. Credit,

Inc., 32 F.3d 989, 994 (6th Cir. 1994) (quoting Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.

1980)).

Accordingly, we AFFIRM the district court's judgment.

ENTERED BY ORDER OF THE COURT

4Z5;t~uw

Deborah S. Hunt, Clerk

No. 16-3344

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Jan 03, 2018

DEBORAH S. HUNT, Clerk

DANIEL P. McKINNEY,

Plaintiff-Appellant,

ORDER

JOHN R. KASICH, GOVERNOR, ET AL.,

Defendants-Appellees.

BEFORE: ROGERS, GRIFFIN, and KETHLEDGE, Circuit Judges.

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the

full court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

IhJ,4Z(

Deborah S. Hunt, Clerk

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 1 of 17 PAGEID #: 497

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL P. MCKINNEY,

: Case No. 2:15-cv-2043

Plaintiff,

JUDGE ALGENON L. MARBLEY

GOVERNOR JOHN R. KASICH, et. al.

: Magistrate Judge Deavers

Defendants.

OPINION & ORDER

This matter is before the Court for consideration of Plaintiff's Objections to the

November 23, 2015 Magistrate Judge's Report and Recommendation (Doc. 36), and Plaintiff's

Objections to the November 24, 2015 Magistrate Judge's Report and Recommendation (Doc.

37). Upon independent review by the Court, and for the reasons set forth below, Plaintiff's

Objections are hereby OVERRULED. The Court ADOPTS the Magistrate Judge's November

23, and November 24, 2015 Reports and Recommendations. Accordingly, Plaintiff's case is

DISMISSED.

I. BACKGROUND

In 2004, Plaintiff, a state inmate proceeding pro Se, began receiving medical treatment

from the Defendants for a knee injury arising from a June 2003 automobile accident. (Doc. 3 at

5.) Plaintiff alleges that the Ohio Department of Rehabilitation and Correction ("ODRC") staff at

the Lebanon Correctional Institution provided him with prescription medication for his knee

injury but conducted no further diagnostic examination or medical treatment when he

complained of pain. (Id.) Plaintiff further alleges that he provided Defendants with the results of

a previous MRI examination showing the extent of the injury that had resulted from the 2003

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 2 of 17 PAGED #: 498

automobile accident, but that Defendants refused to include these results in his medical file. (Id.

at 6.) According to Plaintiff, medical staff at ODRC Allen/Oakwood Correctional Institution

("AOCI") saw him on December 27, 2012 for complaints related to his knee and Defendants

again failed to conduct diagnostic exams or administer other medical treatment. (Id.)

Plaintiff states that on February 12, 2014, while at AOCI, he fell as a result of his knee

injury. Id. Plaintiff states that after the fall in which he "felt his left knee snap," he could not

walk under his own power and experienced "extreme pain and suffering." (Id.) Plaintiff further

states that the duty officer refused to allow him to be seen by medical personnel at the facility

without a formal medical services request. (Id.) Plaintiff says he was then allowed to see AOCI

medical staff after another officer observed his knee. (Id.) According to Plaintiff, medical staff

attributed his knee problems to arthritis and did not conduct an x-ray "until several days later" or

perform any other diagnostic procedures. (Id.)

On March 14, 2014 Plaintiff alleges that his knee developed "a huge bulge on the left

side" and "became grotesquely swollen." (Id. at 7.) Plaintiff states that he submitted a formal

request for medical treatment to which Defendants did not respond. (Id.) Plaintiff claims that he

submitted another formal request on March 24, 2014 and was finally seen two days later. (Id.)

According to Plaintiff, the medical staff "prescribed Ibuprofen, exercise and rest" but otherwise

failed to provide any medical treatment. (Id.)

Plaintiff claims that Defendant Perez, an ODRC contract physician, told him that "due to

Plaintiff being over the age of forty (40) and the costs associated with the overcrowded

conditions of ODRC prisons, ODRC adheres to the policy of restricting ODRC prisoners of

Plaintiffs age class (i.e. over 40) from specialized medical diagnosis and treatment, including

referrals to orthopedic specialists, specialized diagnosis and corrective surgical treatment for

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 3 of 17 PAGEID #: 499

musculoskeletal injuries similar to Plaintiffs left knee and shoulder injuries." (Id.) According to

Plaintiff, he filed a grievance alleging inadequate medical care, which Defendant Factor denied

on April 17, 2014 on the basis of insufficient evidence. (Id. at 7-8.) Plaintiff appealed on April

21, 2014. (Id. at 8.)

Plaintiff states that on May 16, 2014 his knee again gave way and caused him to fall,

injuring his arm, shoulder, and head. Id. Plaintiff claims that, again, he made a formal request for

medical treatment and to date has not received adequate diagnosis or treatment of his injuries.

(Doc. 3 at 8-9.)

Plaintiff alleges that Defendants have conspired in their failure to provide for immediate

and responsive medical care and have been deliberately indifferent to his serious medical needs.

He brings a claim under 42 U.S.C. § 1983, contending that Defendants have violated his right to

be free of cruel and unusual punishment under the Eighth Amendment and his right to equal

protection of the laws under the Fourteenth Amendment. He also brings claims under state tort

laws. (Doc. 3 at 2, 10.) Plaintiff seeks $2.5 million jointly and severally against Defendants for

their alleged deliberate indifference. (Doc. 3 at. 11.) Additionally, Plaintiff seeks declaratory

relief and punitive damages of $250,000.00 each against Defendants Governor Kasich, Mohr,

Wilson, Croft, Payne, Strait, Factor, Payne, and Ohio State University Medical Center Director

Jane/John Doe. Id.

The Magistrate Judge issued a Report and Recommendation (Doe. 36) recommending

that the motions to dismiss of Defendants Strait, Payne, Kasich, Mohr, Factor, Croft, Wilson,

Perez, Edwards, Lin, Rable, and OSUMC Director Doe be granted for failure to state a claim for

relief under Federal Rule of Civil Procedure 12(b)(6). The Magistrate Judge issued a second

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 4 of 17 PAGEID #: 500

Report and Recommendation recommending that Plaintiffs' claims against Defendant Lawson be

dismissed for failure to state a claim for relief (Doe. 37.) Plaintiff objected to both.

II.

STANDARD OF REVIEW

When a party objects to a magistrate judge's report and recommendation on a dispositive

matter, the district judge "must determine de novo any part of the magistrate judge's disposition

that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

After review, 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). General objections are insufficient to preserve any issues for review: "[a]

general objection to the entirety of the magistrate [judge]'s report has the same effects as would a

failure to object." Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Nevertheless, the objections of a petitioner appearing pro se will be construed liberally and held

to less stringent standards than documents drafted by lawyers. See Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam).

In order to state a claim upon which relief may be granted, a plaintiff must satisfy the

pleading requirements of Federal Rule of Civil Procedure 8(a). Rule 8(a) requires that a

complaint set forth "a short and plain statement of the claim showing that the pleader is entitled

to relief," as well as "a demand for the relief sought." Fed. R. Civ. P. 8(a)(2), (3). The purpose

of Rule 8 is to "give the defendant fair notice of what the.

. .

claim is and the grounds upon

which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation

marks and citation omitted). While this notice pleading standard does not require detailed

factual allegations, it does require more than the bare assertion of legal conclusions. Twombly,

550 U.S. at 555. Rule 8 "demands more than an unadorned, the defendant-unlawfully-harmed-

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 5 of 17 PAGEID #: 501

me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Nor does a complaint suffice if it

tenders 'naked assertion[s]' devoid of 'further factual enhancement." Id. (quoting Twombly,

550 U.S. at 557). Thus, a complaint that suggests "the mere possibility of misconduct" is

insufficient; rather, the complaint must state "a plausible claim for relief." Id. at 679.

III. ANALYSIS

A. Defendant Strait's Prosecutorial Immunity

Defendant Strait is an Assistant Attorney General for the State of Ohio. Plaintiff alleges

that, on January 18, 2015, Defendant Strait "draft[ed] documentation and affidavits amounting to

falsification and misrepresentation of material facts" (Doc. 3 at 9) that Plaintiff claims prevented

him from receiving necessary medical attention, presumably when she filed a successful motion

for summary judgment in the Ohio Court of Claims against Plaintiff on January 22, 2015 that

included an affidavit of Defendant Payne. See Def.'s Motion for Summary Judgment, McKinney

v. Ohio Dept. of Rehab. & Corr., No. 2014-00571 (Ohio Ct. Cl. Jan. 22, 2015).

The Magistrate Judge concluded that Defendant Strait had absolute immunity from

Plaintiff's claims. (Doc. 36 at 5-6.) Plaintiff objects that at this stage of the litigation he need

only allege facts to show that his Eighth and Fourteenth Amendment rights have been violated,

but his reading of the law is incorrect. Courts have long recognized, however, that even though §

1983, "on its face, admits of no defense of official immunity," Congress did not intend to

abrogate the longstanding immunities of absolute and qualified immunity. Buckley v.

Fitzsimmons, 509 U.S. 259, 268 (1993). The Supreme Court has held that prosecutors have

absolute immunity from damages for both initiating and prosecuting a case, including

presentation of the state's case at trial. 1mb/er v. Pachtman, 424 U.S. 409, 431 (1976). A

prosecutor must exercise his or her best professional judgment both in deciding which suits to

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 6 of 17 PAGEID #: 502

bring and in prosecuting them in court. Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006).

Without the protection of absolute immunity, prosecutors could not properly perform this duty if

every decision carried the potential consequences of personal liability in a suit for damages. Id.

Prosecutors, therefore, are granted absolute immunity when the challenged actions are those of

an advocate, or in connection with duties required to function a prosecutor. Spurlock v.

Thompson, 330 F.3d 791, 798 (6th Cir. 2003).

The Sixth Circuit has further recognized that immunity is granted to prosecutors

"pursuing a civil action" when they are "functioning in an enforcement role and acting as

advocates for the state," Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000), and when they

"undertake the defense of a civil suit" against state officials, Al-Bari v. Winn, No. 89-5150, 1990

WL 94229 at *1 (6th Cir. July 9, 1990). In Cooper, nightclubs offering nude dance performances

were seized and temporarily closed pursuant to a Tennessee public nuisance statute. Id. at 942.

Owners and employees of the nightclubs in Cooper brought a civil action against prosecutors

under § 1983 and state law against state prosecutors and other state actors. Id. The Sixth Circuit

held that prosecutors were protected by absolute prosecutorial immunity from § 1983 liability for

preparing and filing public nuisance and civil forfeiture complaints involving nightclubs, and the

state prosecutor did not violate the constitutional rights of owners and employees when he swore

to the truth of allegations contained in civil forfeiture and public nuisance complaints. Id at 94750.

Like the prosecutor in Cooper, Defendant Strait was defending a civil suit against the

ODRC when she filed the motion in question. Plaintiff challenges the actions Defendant Strait

took during the defense of a civil suit against the state. Further, Plaintiffs Complaint contains no

allegations that Defendant Strait engaged in any activity outside her role as an advocate in

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 7 of 17 PAGEID #: 503

defending against Plaintiff's civil suit. The Court finds that under Cooper, Defendant Strait is

entitled to absolute immunity in this matter. Accordingly, Plaintiff's claims against her must be

dismissed.

B. Defendant Payne's Witness Immunity

Defendant Payne, in his role as an expert witness, provided an affidavit in support of

Defendant Strait's motion for summary judgment against Plaintiff in the Ohio Court of Claims.

Affidavit of Stephen R. Payne, M.D., McKinney v. Ohio Dept. of Rehab. & Corr., No. 201400571 (Ohio Ct. Cl. Jan. 22, 2015). Plaintiff alleges that Defendant Payne's conduct in providing

the affidavit constitutes "falsification and misrepresentation of material facts," conspiracy to

refuse necessary medical treatment, and conspiracy to violate Plaintiffs Fourteenth Amendment

Equal Protection rights. (Doe. 3 at 9, 10.)

The Magistrate Judge found that Defendant Payne was entitled to absolute immunity as a

witness. Like his objection to the finding of immunity as to Defendant Strait, Plaintiff's

objection focuses on the merits of his claim and not on the question of immunity.

In addition to prosecutorial immunity, the law provides absolute immunity from suit to

witnesses who provide evidence in civil and criminal cases. The immunity does not depend on

whether the testimony was truthful, but whether it was given during the course of a trial

proceeding. Briscoe v. LaHue, 460 U.S. 325 (1983). Witness immunity has long been "well

established in English common law and [is] based on the fact that the threat of liability might

prevent witnesses from testifying at all, or might cause them to distort their testimony based on a

fear that they might later be held liable." Barrett v. Marbley, No. 2:14-CV-0216, 2014 WL

1308697 at *6 (S.D. Ohio Mar. 28, 2014), report and recommendation adopted, No. 2:14-CV0216, 2014 WL 4928950 (S.D. Ohio Oct. 1, 2014). Even if a witness gives false testimony, she is

Case: 2:15-cv-02043-ALM-EPD Doc #: 44 Filed: 03/25/16 Page: 8 of 17 PAGEID #: 504

immune from a suit for money damages; witnesses who testify falsely can be prosecuted for

perjury, but they cannot be held civilly liable based solely upon their testimony. Barrett, 2014

WL 1308697 at *6.

Under Ohio law, "affidavits submitted on the merits of a case, such as an affidavit filed in

support of a dispositive motion, constitute the type of testimony for which absolute immunity is

available." Id. (citing Slayton v. Wells Fargo Bank, NA, No. 2:12-CV-283, 2013 WL 819229, at

*6 (S.D. Ohio Mar. 5, 2013), affd, 542 F. App'x 512 (6th Cir. 2013)). Accordingly, Defendant

Payne is entitled to absolute immunity in this matter, and Plaintiffs' claims against Defendant

Payne must be dismissed.

C. Plaintiff's Claims Barred by the Rooker-Feldman Doctrine

The Rooker—Feldman doctrine is designed "to prevent the encroachment of federal courts

into the business of the state judicial systems." Immel v. Lumpkin, No. 2:07-CV-1214, 2009 WL

2255225 at *2 (S.D. Ohio July 27, 2009). The doctrine is confined to "cases brought by statecourt losers complaining of injuries caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review and rejection of those

judgments." ExxonMobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

Therefore, if a Plaintiff cannot succeed on a federal claim without requiring a district court to reexamine issues already decided by a state court, the district court cannot exercise subject-matter

jurisdiction. Immel, 2009 WL 2255225 at *2.

Whether the Rooker—Feldman doctrine applies involves a two-part inquiry. First, the

Court considers whether the federal claim is "inextricably intertwined" with the claim asserted in

the earlier state court action. Hutcherson v. Lauderdale Cnty., Tenn., 326 F.3d 747, 755 (6th Cir.

2003). A claim is "inextricably intertwined" if "the federal claim succeeds only to the extent that

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the state court wrongly decided the issues before it. Where federal relief can only be predicated

upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding

as, in substance, anything other than a prohibited appeal of the state-court judgment." Id. at 756

(quoting Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998)). Second, the Court considers

"whether the federal claim is a 'general challenge to the constitutionality of the state law applied

in the state action,' to which the Rooker—Feldman doctrine would not apply, or 'a specific

grievance that the law was invalidly—even unconstitutionally—applied in the plaintiffs

particular case,' that would raise a Rooker—Feldman bar." Id. (quoting Catz, 142 F.3d at 293).

The Magistrate Judge found that Plaintiff's federal claims were inextricably intertwined

with the medical malpractice claims he brought in the Ohio Court of Claims because his action

before this Court essentially seeks to overturn the state court's finding that "the diagnosis, care,

and treatment rendered to plaintiff by defendant's medical professionals complied with the

applicable standards of care." McKi nney v. Ohio Dep' t. of Rehab. & Corr., No. 2014-00571

(Ohio Ct. Cl. Mar. 16, 2015). In his objection, Plaintiff argues that because he sought relief

under state tort law in state court, "the state court judgment and relevant evidence is not even the

subject matter of this action." (Doc. 40 at 12.) This is a misreading of the Rooker-Feldman

doctrine. Even if the claims at issue differ, McKinney's federal claim succeeds only to the extent

that the state court wrongly decided the issues before it. Therefore, because a ruling in his favor

on the federal claims before this Court would necessitate a finding that the state court decision

was wrongly decided, Plaintiff's claims against Defendants are barred by Rooker-Feldman. And

even if Rooker-Feldman did not control, Plaintiffs claims would still fail, on other grounds.

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D. Plaintiffs 42 U.S.C. § 1983 Claims

Plaintiff brings his federal law claims against Defendants under 42 U.S.C. § 1983, which

provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of

any State or Territory of the District of Columbia, subjects, or causes to be subjected, any

citizens of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or other proper

proceedings for redress.

As a general rule, a plaintiff proceeding under § 1983 must allege that the deprivation of his

rights was intentional or at least the result of gross negligence. Davidson v. Cannon, 474 U.S.

344, 348 (1986). Mere negligence is not actionable under § 1983. Chesney v. Hill, 813 F.2d 754,

755 (6th Cir. 1987).

1. Claims Against Defendants in their Official Capacities

The Magistrate Judge found that § 1983 does not permit Plaintiff to bring his claims

against Defendants in their official capacities because § 1983 "imposes liability only upon a

'person' who, under color of law, subjects another person to a deprivation of federal rights" (42

U.S.C. § 1983) and "[s]tate officials acting in their official capacity are not 'persons' under §

1983." (Doc. 36 at 10)(citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71(1989)). In his

objection, Plaintiff does not dispute that state officials acting in their official capacity are not

"persons" under § 1983. But he argues that the Complaint, when read in context with his alleged

Eighth Amendment violations, shows alleged constitutional violations which "result from the

actual policies and customs of the Defendants[,]" and that these violations lay the foundation for

a proper § 1983 cause of action. (Doc. 40 at 14).

Plaintiff's objection, however, fails to allege any actual policy or custom of any

Defendants, relying only on an allegation that Defendants Kasich, Mohr, Wilson, Croft, Payne,

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Strait, and Factor refused to rectify a known pattern of deliberate indifference to Plaintiffs

serious medical needs. This is insufficient to survive a motion to dismiss under Rule 12(b)(6).

2. Claims Against Defendants Governor Kasich, Mohr, Croft, Wilson, Strait, Payne,

Perez, Edwards, and OSUMC Director Jane/John Doe in their Individual Capacities

Plaintiff cannot establish the liability of a defendant absent a clear showing of a

Defendant's personal involvement in the activities that form the basis of the alleged

unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976). In other words, individual

liability "must be based on the actions of that defendant in the situation that the defendant faced,

and not based on any problems caused by the errors of others, either defendants or nondefendants." Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991). The mere existence of a

supervisory relationship to the actual wrongdoer is not enough to establish personal liability.

Iqbal, 556 U.S. at 677.

The Magistrate Judge held that "with respect to Defendants Governor Kasich, Mohr,

Croft, Wilson, Strait, Payne, Perez, Edwards, and OSUMC Director Jane/John Doe, Plaintiffs

[Complaint] does not contain any factual allegation that, if proved, would show their personal

involvement in the alleged misconduct." (Doc. 36 at 11). Because the Magistrate Judge could not

"draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged,"

Iqbal, 556 U.S. at 678, even assuming all of his factual allegations are true, she recommended

that the Court dismiss Plaintiff's claims against these Defendants in their individual capacities.

In his objection, Plaintiff argues that his Complaint "unequivocally' indicates how

these Defendants were personally involved.., in the alleged misconduct." (Doc. 40 at

16)(quoting Doc. 36 at 11). He then fails to describe how any of these Defendants were

personally involved in an individual capacity with any of the misconduct alleged in the

Complaint; instead, Plaintiff's inclusion of these Defendants extends merely to conclusory

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statements about their involvement without alleging any facts that would tend demonstrate

causation. (See Doe. 3 at 3, 4, 9, 10.)

3. Eighth Amendment Claims

In order to state an Eighth Amendment claim, a plaintiff must first show facts which

establish that a sufficiently serious deprivation has occurred. Id. The seriousness of a deprivation

is measured against "contemporary standards of decency." Hudson v. McMillian, 503 U.S. 1, 8

(1992) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). A deprivation that amounts to the

type of routine discomfort associated with prison life is not serious enough to constitute a

violation of the Eighth Amendment. Id. In the context of the Eighth Amendment, only deliberate

indifference to serious medical needs or extreme deprivations regarding the conditions of

confinement will implicate constitutional protection. Id. at 9. Plaintiffs must also establish a

subjective element showing the prison officials acted with a sufficiently culpable state of mind.

Id. Deliberate indifference is characterized by obduracy or wantonness, not inadvertence or good

faith error. Whitley v. Albers, 475 U.S. 312, 319 (1986). Mere negligence is not enough to satisfy

this subjective element. Id.

A prisoner traditionally states an Eighth Amendment claim where he is denied some

element of civilized human existence due to deliberate indifference or wantonness. Wilson v.

Seiter, 501 U.S. 294, 298 (1991); Street v. Corr. Corp. of America, 102 F.3d 810, 814 (6th Cir.

1996). Accordingly, "this prong of the Eighth Amendment affords protection against conditions

of confinement which constitute health threats, but not against those which cause mere

frustration or annoyance." Id. (citing Hudson, 503 U.S. at 9-10). Where medical assistance has

been administered, such treatment must be so "woefully inadequate as to amount to no treatment

at all" in order to give rise to a cause of action under § 1983. Westlake v. Lucas, 537 F.2d 857,

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860 (6th Cir. 1976). Allegations of negligence in diagnosing or treating medical conditions are

not actionable under § 1983. Estelle, 429 U.S. at 106; Byrd v. Wilson, 701 F.2d 592, 595 (6th

Cir. 1983); Westlake, 537 F.2d at 860-61. When a prisoner alleges only that the medical care he

received was inadequate, "federal courts are generally reluctant to second guess medical

judgments." Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (quoting Westlake, 537

F.2d at 860 n. 5). Accordingly, the Magistrate Judge concluded that Plaintiff's Eighth

Amendment claim was not actionable because an alleged failure to provide diagnostic tests and

additional treatment was a contention that the medical care was merely inadequate.

In his objection, Plaintiff asserts that Defendants' failure to provide certain diagnostic

procedures and medical treatment in addition to the treatment actually received constitutes a

violation of his Eighth Amendment rights. As the Magistrate Judge indicated, the essence of

Plaintiffs claim, then, is that Defendants provided him with inadequate medical care and were

negligent in their diagnosis and treatment. This Court is not in a position to second guess the

professional medical staff at ODRC. Further, the case on which Plaintiff relies for the

proposition that "in some cases the medical attention rendered may be so woefully inadequate as

to amount to no treatment at all," Westlake, 537 F.2d at 860 n. 5, does not help his case. In

Westlake, the inmate suffered from an ulcer and was denied a special diet and medication, not

permitted to see a doctor for several days, and, after vomiting blood, was given only a mild

antacid. Id. at 859. Here, by contrast, Plaintiff did receive some treatment and the Court cannot

say that a failure to provide him further treatment under the circumstances was "so woefully

inadequate as to amount to no treatment at all." Id. at 860 n. 5.

E. Plaintiff's Claims under 42 U.S.C. § 1985(3) and § 1986

42 U.S.C. § 1985(3) provides in relevant part that:

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If two or more persons in any State or Territory conspire or go in disguise on the highway

or on the premises of another, for the purpose of depriving, either directly or indirectly,

any person or class of persons of the equal protection of the laws, or of equal privileges

and immunities under the laws, or of equal privileges and immunities under the laws; or

for the purpose of preventing or hindering the constituted authorities of any State or

Territory from giving or securing to all persons within such State or Territory the equal

in any case of conspiracy set forth in this section, if one or

protection of the laws;

more persons engaged therein do, or cause to be done, any act in furtherance of the object

of such conspiracy, whereby another is injured in his person or property, or deprived of

having and exercising any right or privilege of a citizen of the United States, the party so

injured or deprived may have an action for the recovery of damages occasioned by such

injury or deprivation, against any one or more of the conspirators.

. . .

To state a cause of cause of action under § 1985(3) a plaintiff must allege: "(1) a conspiracy; (2)

for the purpose of depriving, either directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in

furtherance of the conspiracy; and (4) an injury to either person or property or a deprivation of

any right or privilege of a United States citizen." Volunteer Med. Clinic, Inc. v. Operation

Rescue, 948 F.2d 218, 223 (6th Cir. 1991). To show a conspiracy under § 1985(3), Plaintiff must

allege facts that, if true, would show that Defendants either acted in concert or in furtherance of a

common objective to injure him. Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998).

Conspiracy claims must be pled with some degree of specificity. Gutierrez v. Lynch, 826 F.2d

1534, 1538 (6th Cir. 1987). Vague and conclusory allegations unsupported by materials facts are

not sufficient to state a conspiracy claim. Id.

Section 1986 creates a cause of action for a knowing failure to prevent wrongful acts

pursuant to a conspiracy to interfere with civil rights. 42 U.S.C. § 1986. Any defendants with

knowledge of a § 1985(3) conspiracy who, through negligence, fail to prevent the discriminatory

acts can be liable under § 1986. Bishawi v. Ne. Ohio Corr. Ctr., 628 F. App'x 339, 346 (6th Cir.

2014).

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The Magistrate Judge held that, because Plaintiff failed to make sufficient factual

allegations to establish any sort of "meeting of the minds" or to link any of the alleged

conspirators in a conspiracy to deprive him of his constitutional rights, Plaintiff failed to state a

claim for relief under 42 U.S.C. § 1985(3). In his objection, Plaintiff asserts that Defendants'

conduct in failing to provide certain diagnostic procedures and medical treatment amounted to a

conspiracy to deprive him, as a member of the class of inmates over the age of 40, of medical

treatment, which violates the Fourteenth Amendment Equal Protection Clause. (Doc. 40 at 23.)

Plaintiff, however, offers nothing more than the conclusory allegation that Defendants acted in

concert, and he relies on inapposite cases in which the plaintiffs stated with particularity how the

defendants acted in concert to deprive the plaintiffs of their constitutional rights. See, e.g., Griffin

v. Breckinridge, 403 U.S. 88, 102-03 (1971). This Court finds that the plaintiff has failed to

allege facts sufficient to establish a "meeting of the minds" or to link any of the alleged

conspirators in a conspiracy to deprive him of his constitutional rights. Accordingly, Plaintiff

fails to state a claim under 42 U.S.C. § 1985(3) or § 1986.

F. Defendants' Immunity from State Law Claims

The Magistrate Judge correctly held that the Court is not in a position to determine

whether Defendants are immune from Plaintiffs unspecified state law tort claims because

Plaintiffs claims are not cognizable until the Ohio Court of Claims determines that the

Defendants are not immune. See Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989).

Plaintiff does not address this argument in his objection. Accordingly, the Court cannot exercise

jurisdiction over Plaintiffs state law tort claims until such time as a cause of action against

Defendants is recognized under Ohio law.

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G. Plaintiff's Claims against Defendant Lawson

According to the Complaint, Plaintiff asserts claims against Defendant Lawson in both

her official capacity as a former Health Care Administrator for Lebanon Correctional Institution,

and her individual capacity. (Doe. 3 at 3.) The Magistrate Judge conducted an initial screening of

the Plaintiff's Complaint as required by 28 U.S.C. § 1915A, to identify cognizable claims and to

recommend dismissal of any claims that were frivolous, malicious, failed to state a claim upon

which relief could be granted, or sought relief from a defendant who is immune from such relief,

was subject to dismissal. (Doe. 37). In her November 24, 2015 Report and Recommendation, the

Magistrate Judge recommended that the Plaintiff's claims against Defendant Lawson, in her

individual and official capacity, be dismissed for the same reasons as against the other

Defendants. (Doe. 37 at 11-12).

A general objection to a magistrate judge's report, which fails to specify the issues of

contention, does not suffice to preserve an issue for appeal. See Howard, 932 F.2d at 508-09.

"The objections must be clear enough to enable the district court to discern those issues that are

dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (citing Howard,

932 F.2d at 505). An objection preserves an issue for appeal when it "explain[s] and cite[s]

specific portions of the report which [counsel] deem[s] problematic." Smith v. Chater, 121 F.3d

709, 1997 WL 415309, at *2 (6th Cir. July 18, 1997) (unpublished).

In Smith, the Plaintiff's objections discussed issues, particularly arguments concerning

errors committed by an ALJ during a Social Security hearing, specific to the Magistrate's Report

and Recommendation. The Court of Appeals held that Smith's objections satisfied the standard

outlined in Miller because his objections alerted the district court to those portions of the

magistrate judge's report with which the plaintiff disagreed. Id. Here, although Plaintiff's

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objection does not specify which arguments apply to Defendant Lawson, the Court finds that

Plaintiffs objections to the Magistrate Judge's November 24, 2015 Report and Recommendation

(Doe. 40 at 4, 7, 18, 20, 21) are sufficient for the Court to address in its de novo review. The

Court does not, however, find Plaintiff's Objections to be persuasive for the same reasons

addressed in the analysis of the Plaintiff's claims against the other Defendants. In particular, like

the other Defendants, Plaintiff has failed to state a claim for relief against Defendant Lawson

because his claims are barred by the Rooker-Feldman doctrine. Second, he cannot state a claim

against Defendant Lawson in her individual capacity, nor has he alleged facts that show a

plausible Eighth Amendment claim for deliberate indifference under § 1983 or conspiracy claims

under § 1985(3) and § 1986. Moreover, Defendant Lawson is immune from the state law claims

for the same reasons as the other Defendants.

III. CONCLUSION

The Court OVERRULES Plaintiffs Objections and ADOPTS the Magistrate Judge's

November 23, 2015 Report and Recommendation (Doe. 36) and the November 24, 2015

Report and Recommendation. (Doe. 37.) Defendants' Motions to Dismiss (Does. 12, 17, 18,

and 19) are GRANTED. Plaintiff's claims are hereby DISMISSED. The Clerk is directed to

enter Judgment for Defendants.

IT IS SO ORDERED.

sl Algenon L. Marbley

ALGENON L. MARBLEY

UNITED STATES DISTRICT JUDGE

DATED: March 25, 2016

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL P. MCKJNNEY,

Plaintiff,

Civil Action 2:15-cv-2043

Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

GOVERNOR JOHN R. KASICH, et al.,

Defendants.

ORDER and

REPORT AND RECOMMENDATION

Plaintiff, a state inmate under the supervision of the Ohio Department of Rehabilitation

and Correction, brings this prisoner civil rights action under 42 U.S.C. § 1983 and Ohio state tort

law. (ECF No. 3.) This matter is before the Court sua sponte for an initial screen of Plaintiff's

Complaint as required by 28 U.S.C. § 1915A to identify cognizable claims and to recommend

dismissal of Plaintiff's Complaint, or any portion of it, which is frivolous, malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. § 1915A(b).

The undersigned finds that Plaintiff's claims against Defendant Cindy Lawson in her

official capacity are not cognizable under 42 U.S.C. § 1983 and therefore RECOMMENDS that

the Court DISMISS those claims. The Undersigned also finds that the complaint fails to state a

claim for which relief can be granted with respect to Plaintiff's claims against Defendant Lawson

in her individual capacity under 42 U.S.C. § 1983 and therefore RECOMMENDS that the Court

DISMISS Plaintiff's claims against her under those provisions. The Undersigned further finds

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that Plaintiff's claims against Defendant Lawson under Ohio state tort law are not cognizable and

therefore RECOMMENDS that the Court DISMISS those claims.

According to the Complaint, in 2004 Defendants began providing medical care to

Plaintiff for a knee injury arising from a June 2003 automobile accident. (ECF No. 3 at 5.)

Plaintiff states that ODRC staff at the Lebanon Correctional Institution provided him with

prescription medication but no further diagnostic examination or medical treatment. (Id.)

Plaintiff further states that he provided Defendant Lawson with the results of a previous MRI

examination showing structural damage to his knee that resulted from the 2003 accident. (Id.)

According to Plaintiff, Defendant Lawson refused to include the MRI results in his medical file

and failed to approve certain follow-up procedures and diagnostic tests. (ECF No. 3 at 6.)

Plaintiff claims that Defendant Lawson's actions caused or contributed to subsequent injuries

and medical complications. (ECF No. 3 at 6-9.) He previously filed a medical malpractice

action regarding these claims in the Ohio Court of Claims. Mckinney v. Ohio Dep 't. of Rehab. &

Corr., No. 2014-00571 (Ohio Ct. Cl. Mar. 16, 2015).

Plaintiff alleges Defendant's "conspiring in the failure to provide for immediate and

responsive" medical care constitutes cruel and unusual punishment under the Eighth Amendment

and violates Plaintiff's Equal Protection rights and, therefore, violate 42 U.S.C. § 1983 and state

tort laws. (ECF No. 3 at 2, 10.) Plaintiff also alleges that Defendant's "pattern of deliberate

indifference to Plaintiff's serious medical needs" constitutes cruel and unusual punishment under

the Eighth Amendment and, therefore, also violates 42 U.S.C. § 1983 and state tort laws. (Id.)

Plaintiff seeks $1.25 million jointly and severally against Defendant and six others for their

alleged deliberate indifference. (ECF No. 3 at. 11.)

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II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

"lower judicial access barriers to the indigent." Denton v. Hernandez, 504 U.S. 25, 31(1992).

In doing so, however, "Congress recognized that 'a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits." Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)' as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-*

(B) the action or appeal—

is frivolous or malicious;

fails to state a claim on which relief may be granted; or.

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court's determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the

pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) "imposes legal and factual

'Formerly 28 U.S.C. § 1915(d).

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demands on the authors of complaints." 16630 Southfield Ltd., P 'Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require "detailed factual allegations,'

. . .

[a]

pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause

of action," is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not "suffice if it tenders 'naked

assertion[s]' devoid of 'further factual enhancement." Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), "a

complaint must contain sufficient factual matter.

. .

to 'state a claim to relief that is plausible on

its face." Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established "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. "The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant's conduct." Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se ain complaints "to less stringent standards than formal pleadings drafted by

lawyers." Garrett v. Belmont Cnty. Sheriff's Dep't., No. 08-3978, 2010 WL 1252923, at *2 (6th

Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; "courts should not have to guess at the nature of the claim

asserted." Frengler v. Gen. Motors, 482 F. App'x 975, 976-77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III.

A. Plaintiff's Claims Barred by the Rooker-Feldman Doctrine

The Rooker—Feldman doctrine is designed "to prevent the encroachment of federal courts

into the business of the state judicial systems." Immelv. Lumpkin, No. 2:07-CV-1214, 2009 WL

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2255225 at *2 (S.D. Ohio July 27, 2009). It protects the state judicial systems by recognizing

that the "independence of state courts would surely be compromised if every adverse decision in

state court merely rang the opening bell for federal litigation of the same issues." Squirek v. Law

Offices of Sessoms & Rogers, P.A., 2003 WL 21026580 (M.D. N.C. May 5, 2003) (quoting

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000)). Therefore, if a plaintiff

cannot succeed on a federal claim without requiring a district court to re-examine issues already

decided by a state court, the district court cannot exercise subject matter jurisdiction. Immel,

2009 WL 2255225 at *2.