United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON JUDGE
REPORT AND RECOMMENDATION
TERENCE P. KEMP UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the combined motion for
judgment on the pleadings and motion for summary judgment
filed by defendants. Plaintiff Kenneth Marshall has filed a
response. Defendants have not filed a reply and the motion is
now ripe for decision. For the following reasons, the Court
will recommend that the motion for judgment on the pleadings
be granted, in part and denied, in part. Further, the Court
will recommend that the motion for summary judgment be
Marshall is a former state prisoner who has brought this
action pursuant to 42 U.S.C. §1983. The background and
procedural history of this case have been explained in
previous orders of this Court and will not be repeated here.
As the Court has previously discussed, the operative
complaint in this case is comprised of Docs. 78 and 83. These
documents relate to Mr. Marshall's incarceration at the
Pickaway Correctional Institution and appear to be his
attempt to raise a claim relating to the denial of medical
care, including mental health treatment and treatment for
pain arising from a spinal cord injury, in violation of the
Eighth Amendment, and a claim for the denial of access to the
courts in violation of the First Amendment. Based on the
Court's review of these filings, Mr. Marshall's
allegations can be summarized as follows.
Document 78, with respect to the issue of medical records,
Mr. Marshall asserts that Elice Payenter, Mrs./Ms. Jackie,
Missy Rousch, Heather Hagan, and Dr. Hale withheld medical
records necessary for effective treatment of his medical
conditions. Libby Dillinger provided Ms. Payetner and Mrs.
Jackie with addresses.
alleging a violation of his Eight Amendment rights, Mr.
Marshall states that Director Mohr, Dr. Eddy and Mr. Gardner
have instituted a policy, custom or practice of denying
inmates narcotic pain medication. Mr. Marshall explains that
he has suffered with pain, determined by OSU to be
intractable, since 2013. According to Mr. Marshall, he is
required to take pain medication in conjunction with the use
of an electronic device placed near his spinal cord.
Mr. Marshall contends that Dr. Eddy, Mr. Gardner and Mrs.
Rousch have denied him medical care, including specifically
an MRI and a CAT-scan. Mr. Marshall asserts that this denial
was an effort to delay medical treatment, and specifically,
treatment at a spinal cord center.
Marshall also states that, with respect to his mental health
issues, he has been denied “Wellbutin” and panic
medications. He does not identify any defendant responsible
for this alleged denial in Doc. 78.
respect to his First Amendment claim for a denial of access
to the courts, Mr. Marshall states that he wrote to Director
Mohr and as a result, Director Mohr has an
“awareness” of this denial and resulting
prejudice. Mr. Marshall further asserts that the
“policy, practice, and custom of the administrative
hierarchy” have denied him access to the courts as a
result of his poverty. Mr. Marshall also contends that Mrs.
Stewart and Pat Brown have failed to process cash
transactions and this has resulted in his procedural default.
in Doc. 85, Mr. Marshall asserts that he suffers from anxiety
and panic attacks and that “Mental-Health Director; Dr.
Kennedy, Nurse Practioner: Mrs./Ms. Nicole McKraken; Nurse,
Josh, and Mrs./Ms. Kite ... of the mental
health-department” have intentionally withheld his
“psychotrophic medication” in an effort to harm
him “for seeking review of his treatment, or lack
thereof.” Both documents indicate that Mr. Marshall is
suing all defendants in their official and individual
purposes of the current motion, the following defendants have
been served with Mr. Marshall's currently operative
complaint and filed an answer: (1) ODRC; (2) ODRC Director
Gary Mohr; (3) ODRC Medical Director Dr. Andrew Eddy; (4)
Health Information Technician Elice Paynter; (5) Medical
Operations Manager/Health Care Administrator Mary Roush; (6)
Nurse Supervisor Heather Hagan; (7) Chief Medical Officer Dr.
Arthur Hale; (8) Nurse Supervisor Lizabeth Dilley; (9)
Regional Certified Nurse Practitioner John Gardner; (10)
Financial Associate Deborah Stewart; (11) Business Associate
III Margaret Brown; (12) Psychiatric Supervisor Dr. Wayne
Kennedy; (13) Certified Nurse Practitoner Nicole McCrackin;
and (14) Psychiatric Assistant Ashley Kight. All of these
defendants have joined in the current motion.
defendants named in Mr. Marshall's various filings have
been dismissed on motion, dismissed by operation of Mr.
Marshall's amendments, or have not been served.
Defendants' Motion for Judgment on the Pleadings
assert that are entitled to judgment on the pleadings because
the Eleventh Amendment bars any claims for money damages
against the ODRC or any prison officials named in their
official capacities. Further, they contend that any claims
against them in their individual capacities must be dismissed
because Mr. Marshall has failed to meet minimal pleading
standards and, as a result, has failed to state a claim upon
which relief can be granted. Mr. Marshall's response does
not address these arguments. Rather, as will be explained in
more detail below, the focus of Mr. Marshall's response
is limited to the issue of exhaustion.
motion for judgment on the pleadings filed under Fed.R.Civ.P.
12(c) attacks the sufficiency of the pleadings and is
evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038
(6th Cir. 1979). In ruling upon such motion, the Court must
accept as true all well- pleaded material allegations of the
pleadings of the opposing party, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment. Southern Ohio Bank v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478,
480 (6th Cir. 1973). The same rules which apply to judging
the sufficiency of the pleadings apply to a Rule 12(c) motion
as to a motion filed under Rule 12(b)(6); that is, the Court
must separate factual allegations from legal conclusions, and
may consider as true only those factual allegations which
meet a threshold test for plausibility. See, e.g., Tucker
v. Middleburg-Legacy Place, 539 F.3d 545 (6th Cir.
2008), citing, inter alia, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Further, as always, pro se
complaints are to be construed liberally in favor of the pro
se party. See Haines v. Kerner, 404 U.S. 519, 520
(1972). It is with these standards in mind that the motion
for judgment on the pleadings must be decided.
extent that Mr. Marshall asserts any claim for damages
against the defendants in their official capacities,
defendants are correct that they are entitled to Eleventh
Amendment immunity. The Eleventh Amendment to the United
States Constitution bars suits against either a state or
agencies of a state by citizens of that state. Edelman v.
Jordan, 415 U.S. 651 (1974). Under certain
circumstances, a suit against an individual state official
may nonetheless be deemed to be a suit against the state and
therefore barred by the Eleventh Amendment. The primary test
for determining whether the state is the real party in
interest in a suit is whether the source of any funds from
which a damage award would be paid would be the state
treasury. Edelman, supra. Suits against
state officials in their official capacities are deemed to be
suits against the state, so that a damage award would run
against the state treasury, exactly the relief barred by the
Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159
(1985). Additionally, if an individual is alleged to have
only vicarious liability as a result of his official
position, any damage award made (if one were permissible)
would necessarily be against the office rather than the
officeholder and therefore be an award against the state.
See Ford Motor Co. v. Department of the Treasury,
323 U.S. 459 (1945); see also Hall v. Medical College of
Ohio, 742 F.2d 299 (6th Cir. 1984), cert.
denied 469 U.S. 1113 (1985). When a suit is barred by
the Eleventh Amendment, the Court lacks jurisdiction over it
and it must be dismissed without prejudice. Cf.
Gwinn Area Comm. Schools v. State of Michigan, 741
F.2d 840, 846-47 (6th Cir. 1984). Consequently, any claim
asserted by Mr. Marshall for monetary relief against the ODRC
or other defendants in their official capacities must be
dismissed under the Eleventh Amendment. Further, to the
extent that Mr. Marshall's amended complaint could be
read as asserting any claim for injunctive relief against any
defendants in their official capacities, such a claim would
be moot as a result of Mr. Marshall's release from prison
on December 10, 2015. See Kensu v. Haigh, 87 F.3d
172, 175 (6th Cir. 1996).
to the issue of Mr. Marshall's failure to satisfy minimal
pleading requirements, certainly, in order to survive a
motion to dismiss or a motion for judgment on the pleadings,
a complaint must contain factual allegations sufficient to
“raise the claim above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Conclusory allegations without specific facts do not
state a claim under §1983. Id.; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
as defendants assert, some of Mr. Marshall's allegations
can be characterized fairly as general assertions lacking in
sufficient specificity to meet minimal pleading requirements.
For example, to the extent Mr. Marshall is attempting to
assert a First Amendment access to the courts claim, he does
not identify with any detail the actions of any defendant
that specifically resulted in this alleged denial. He merely
states that he wrote to Director Mohr to make him aware of
the issue. To the extent that Mr. Marshall's allegations
that Ms. Stewart and Pat Brown refused to process cash
transactions resulting in his procedural default of cases in
this Court could form the basis of an access to the courts
claim, he does not identify which specific cases or suggest
actual injury by asserting that the claims at issue were
non-frivolous. See Brown v. Matauszak, 415 Fed.Appx.
608, 612 (6th Cir. 2011). Consequently, the motion for
judgment on the pleadings will be granted as to Mr.
Marshall's access to the courts claim.
this claim, however, the focus of Mr. Marshall's amended
complaint is that he was denied medical treatment and pain
medication either directly by the actions of certain specific
defendants or as a result of policies implemented by specific
defendants in violation of the Eighth Amendment. To establish
an Eighth Amendment violation, a prisoner must show that he
or she has a serious medical condition and that the
defendants displayed a deliberate indifference to his or her
health. Estelle v. Gamble, 429 U.S. 97 (1976);
Wilson v. Seiter, 501 U.S. 294 (1991). This
formulation has both a subjective and an objective component.
Objectively, the medical condition at issue must be
“serious” as opposed to “trivial, ”
“minor, ” or “insubstantial.”
Subjectively, the defendants accused of violating the Eighth
Amendment must have acted with a state of mind that can
accurately described as “deliberate
the complaint is not highly detailed, Mr. Marshall's
allegations indicate that he endures pain relating to a
spinal condition and that he suffers from anxiety. Further,
his allegations, construed broadly as the Court is required
to do, state that, in addition to the denial of pain
medication, he was denied tests or records necessary for the
proper treatment of his spinal condition. He also identifies