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Conn v. Wilkinson

August 8, 2006

LARRY G. CONN, PLAINTIFF,
v.
REGINALD WILKINSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

JUDGE MICHAEL H. WATSON

REPORT AND RECOMMENDATION

This is a civil rights action under 42 U.S.C. §1983 ("Section 1983"), in which plaintiff, an inmate at North Central Correctional Institution ("NCCI") in Marion, Ohio, alleges that defendants were deliberately indifferent to his serious medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution. This matter is before the Court on Defendants' Motion to Dismiss, Doc. No. 11, Defendant Sayers' Motion to Dismiss, Doc. No. 19, Motion by the State of Ohio to Dismiss Defendants King and Rosieo ("Defendants King and Rosieo's Motion to Dismiss"), Doc. No. 30, and Plaintiff's Motion for Default Judgment Against Defendants King, Sayers and Rosieo, Doc. No. 28.

For the reasons that follow, it is RECOMMENDED that Plaintiff's Motion for Default Judgment Against Defendants King, Sayers and Rosieo be DENIED, that Defendants King and Rosieo's Motion to Dismiss and Defendant Sayer's Motion to Dismiss be DENIED as moot and that Defendants' Motion to Dismiss be GRANTED in part and DENIED in part.

I. RELEVANT FACTS

On May 24, 2004, plaintiff underwent a right hip replacement. Complaint ¶ 10. On June 7, 2004, plaintiff was sentenced to prison and, on June 9, 2004, he was transported to the Correctional Reception Center ("CRC") in Pickaway County, Ohio. Id. ¶¶ 12, 13. Upon his arrival at CRC, plaintiff was seen by a prison doctor, who advised him to continue his use of a walker and to use a chair in the shower. Id. ¶ 15. Plaintiff alleges that the reception officers at CRC prohibited him from keeping the walker he had brought with him. Id. ¶ 16.

On June 12, 2004, plaintiff took a shower at CRC but was not provided a chair. Id. ¶ 17. Plaintiff fell as he left the shower and displaced his new hip. Id. ¶¶ 10, 23. On June 16, 2004, plaintiff underwent a hip revision. Id. ¶ 25. Plaintiff alleges that the staff at CRC acted with deliberate indifference to his serious medical needs by prohibiting him from retaining his walker and by failing to provide him with a shower chair. Id. ¶¶ 16, 17, 18.

On June 21, 2004, plaintiff was transported to the Corrections Medical Center ("CMC") in Columbus, Ohio, where he was to stay during his recovery from the hip revision surgery. Id. ¶

26. Plaintiff alleges that, while at CMC, his hip wound dressings were not changed for 28 days, resulting in pain and causing the wounds to become infected. Id. ¶ 27. Plaintiff contends that he sent multiple requests for treatment to a prison doctor, defendant Dr. King, and to CMC's Health Care Administrator, defendant Mrs. Vansky. Id. On July 2, 2004, Dr. King administered antibiotics for an infection in plaintiff's hip. Id. ¶ 29. Plaintiff alleges that Dr. King, Mrs. Vansky and CMC's Institutional Inspector, defendant Mr. Sayer, acted with deliberate indifference to his serious medical needs by failing to timely change his wound dressing. Id. ¶

27. On July 19, 2004, plaintiff was discharged from CMC and returned to his parent institution, NCCI. Id. ¶ 31. Once at NCCI, plaintiff requested an egg crate mattress and a remote control for his television set, contending that these items were necessary medical accommodations. Id. ¶ 36. Plaintiff was denied both items. Id. Plaintiff contends that NCCI's Disability Coordinator, defendant Steven Hartford, NCCI's Medical Supervisor, defendant Mrs. Rosieo, and NCCI's Institutional Inspector, defendant Larry Yoder, all acted with deliberate indifference to his serious medical needs by failing to provide these items to him. Id. ¶ 39.

On July 19, 2005, plaintiff initiated this action. Doc. Nos. 1, 3. On September 14, 2005, defendants Wilkinson, Vansky, Hartford and Yoder filed Defendants' Motion to Dismiss. Doc. No. 11. On January 20, 2006, plaintiff filed Plaintiff's Memorandum Contra Defendants Wilkinson, Vansky, Hartford and Yoder's Motion to Dismiss ("Plaintiff's Memorandum contra"). Doc. No. 24. On February 2, 2006, Defendants Wilkinson, Vansky, Hartford and Yoder filed Defendants' Reply to Plaintiff's Memorandum contra Defendants' Motion to Dismiss. Doc. No.

25. Plaintiff then filed, twice, Plaintiff's Reply to Defendants' Reply to Plaintiff's Memorandum Contra to Defendants' Motion to Dismiss. Doc. Nos. 26, 27.

On November 4, 2005, defendant Sayers filed Defendant Sayers' Motion to Dismiss. Doc. No. 19. Plaintiff has not responded to that motion.

On March 31, 2006, plaintiff filed Plaintiff's Motion for Default Judgment against Defendants King, Sayers and Rosieo. Doc. No. 28. On April 18, 2006, defendant Sayers filed his opposition to plaintiff's motion. Doc. No. 30.

Also on April 18, 2006, defendants King and Rosieo filed Defendants King and Rosieo's Motion to Dismiss. Doc. No. 30. Plaintiff has not responded to that motion.

II. STANDARDS

A. Section 1983

Plaintiff brings this action under 42 U.S.C. § 1983. Under that statute, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Section 1983 is a method for vindicating federal rights; it is not itself a source of substantive rights. Albright v. Oliver, 510 U.S. 266, 271 (1994).

B. Pro Se Litigants

In this case, plaintiff is proceeding without the assistance of counsel. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than are formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21(1972); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A court should make a reasonable attempt to read the pleadings of a pro se litigant to state a valid claim on which the plaintiff could prevail, despite any failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, or unfamiliarity with the pleading requirements. Ashiegbu v. Purviance, 74 F. Supp. 2d 740, 749 (S.D. Ohio 1998) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). "This standard does not mean, however, that pro se plaintiffs are entitled to take every case to trial." Id. (citing Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)). "Indeed, courts should not assume the role of advocate for the pro se litigant." Id. (citing Hall, 935 F.2d at 1110).

It is with these standards in mind that the instant motions will be decided.

III. ANALYSIS

A. Defendants' Motion to Dismiss

1. Standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure

Defendants move to dismiss plaintiff's claims for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) attacks the legal sufficiency of the complaint. Roth Steel Prod. v. Sharon Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether dismissal on this basis is appropriate, the complaint must be construed in the light most favorable to the plaintiff, and all well-pleaded facts must be accepted as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996); Misch v. The Cmty. Mutual Ins. Co., 896 F. Supp. 734, 738 (S.D. Ohio 1994). A claim will be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Thus, this Court will grant a motion to dismiss under Rule 12(b)(6) if the complaint is without merit because of an absence of facts or law to support the claims in it or if, on the face of the complaint, there is an insurmountable bar to relief. See generally, ...


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