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Marshall v. Ohio Department of Rehabilitation & Corrections

United States District Court, S.D. Ohio, Eastern Division

April 10, 2017

Kenneth Marshall, Plaintiff,
v.
Ohio Department of Rehabilitation & Corrections, et al., Defendants.

          MICHAEL H. WATSON JUDGE

          REPORT AND RECOMMENDATION

          TERENCE P. KEMP UNITED STATES MAGISTRATE JUDGE

         This 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 granted.

         I. Background

         Mr. 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.

         In 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.

         Further 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.

         Additionally, 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.

         Mr. 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.

         With 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.

         Finally, 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 capacities.

         For 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.

         Other 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.

         II. Defendants' Motion for Judgment on the Pleadings

         Defendants 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.

         A. Legal Standard

         A 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.

         B. Analysis

         To the 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).

         Turning 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 suffice”).

         Here, 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.

         Beyond 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 indifference.”

         While 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 specific ...


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