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Cleare v. Jenkins

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

June 12, 2017

RODERICK CLEARE, Plaintiff,
v.
WARDEN CHARLOTTE JENKINS, et al., Defendants.

          Judge Algenon L. Marbley

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. (Doc. 45). For the reasons set forth below, it is RECOMMENDED that Defendants' Motion be GRANTED.

         I. BACKGROUND

         This litigation has dragged on for nearly three years and remains at the pleading stage. During this action's pendency, the Court has afforded Plaintiff three opportunities to file a proper complaint (see Doc. 1 (original complaint filed May 29, 2015); Doc. 5 (amended complaint filed July 8, 2015); Doc. 44 (second amended complaint filed October 13, 2016), and provided guidance to Plaintiff on doing so. See, e.g., Doc. 4 at 2-3 (directing Plaintiff to amend his Complaint to clarify which individuals he sought to name as Defendants); Doc. 6 at 4 (conducting an initial screen of the Amended Complaint recommending dismissal of claims requesting prosecutorial action); Doc. 9 (adopting initial screen); Doc. 32 at 16-17 (recommending that motion to dismiss amended complaint be granted on certain claims and that the Court, sua sponte, grant Plaintiff a second opportunity to amend); Doc. 39 at 1 (adopting the report and recommendation). The operative complaint at this juncture is the Second Amended Complaint. (Doc. 44).

         Plaintiff's Second Amended Complaint attempts to raise claims under 42 U.S.C. § 1983, arising from an incident that allegedly occurred on February 21, 2015. (Id. at ¶¶ 1, 1A). Plaintiff claims that, on that day, Officer Irvin handcuffed him and escorted him to the captain's office with Officer Higgenbothem's assistance. (Id.) Plaintiff claims that in the office he was “forcibly grabbed around his neck while staff forced [their] weight upon his back and neck while screaming obscenities and while other staff looked on in total laughter refusing to acknowledge or prevent this wrongdoing.” (Id. at ¶ 4). Plaintiff also claims he was “slammed hard” against the wall. (Id.). As to who was responsible for this conduct, Plaintiff states generally that “Lt. Brown engaged in excessive force and physical and verbal abuse. Staff present and those engaged in laughter was Capt. Brown, Lt. Brown, C/O Irvin and C/O Higgenbothem.” (Id. at ¶ 4A). Plaintiff further claims that Officer Higgenbothem and Officer Irvin “dragged” him to segregation. (Id. at ¶¶ 4, 4A).

         According to Plaintiff's allegations, he was improperly issued a misconduct report for assault, which was “administratively dismissed without rendering any disposition or procedural hearings.” (Id. at ¶¶ 4-5). Plaintiff filed an informal complaint regarding the alleged excessive force which he contends resulted in him being placed back into segregation. (Id. at ¶ 5). Thereafter, Plaintiff filed a second informal complaint, alleging that he was placed in segregation in retaliation for filing his first informal complaint. (Id. at ¶ 10, 10A). Plaintiff asserts that, upon release from segregation, he complained that he hadn't received his pain medication. (Id. at ¶ 13). In what may be an unrelated claim, Plaintiff asserts that he was improperly issued a misconduct report for refusing to work despite a 30-day “medical work lay-in” that prevented him doing so. (Id. at ¶¶ 14, 14A). Finally, Plaintiff claims that he spoke with Institutional Inspector Free about the alleged “corruption” and “nothing was done to resolve, correct, or remedy this matter.” (Id. at ¶¶ 15, 15A).

         Defendants Captain Brown, Lieutenant Brown, Officer Higginbothem, Institutional Inspector Free, and Officer Irvin filed a Motion to Dismiss on November 3, 2016. (Doc. 45). That Motion is now ripe for review. (Docs. 54, 57 (opposition); Doc. 56 (reply)).

         II. STANDARD OF REVIEW

         In examining a motion to dismiss under Rule 12(b)(6), the Court must construe the complaint in favor of the plaintiff, accept all well-pleaded factual allegations as true, and evaluate whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Consequently, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

         III. DISCUSSION

         Defendants assert that Plaintiff's § 1983 Complaint is deficient because, inter alia, it fails to allege specifically how each defendant was involved personally in the alleged civil rights deprivation. (Doc. 45 at 7) (citing Frazier v. Michigan, 41 F. App'x 762, 764 (6th Cir. 2002) (finding dismissal appropriate when plaintiff did not allege which of the named defendants were personally involved in, or responsible for, each alleged rights violation)). As this Court has explained previously (Doc. 32 at 9), Plaintiff must allege “personal involvement” by each defendant in order to state a viable claim under 42 U.S.C. § 1983. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (stating that § 1983 liability cannot be imposed under a theory of respondeat superior”) (citation omitted); Rizzo v. Goode, 423 U.S. 362, 371 (1976); see also Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (noting that “[p]ersons sued in their individual capacities under § 1983 can be held liable based only on their own unconstitutional behavior”); Murphy v. Grenier, 406 F. App'x at 972, 974 (6th Cir. 2011) (“Personal involvement is necessary to establish section 1983 liability.”). Each defendant must, therefore, play more than a passive role in the alleged violation or show mere tacit approval of the actions in question. Rizzo, 423 U.S. at 371. The Court now examines the allegations as to each Defendant.

         A. Captain Brown

         As Defendants explain, “Plaintiff's only allegation against Defendant Capt. Brown is that he was laughing at Plaintiff during the use of force incident.” (Doc. 45, n. 3) (citing Doc. 44 at ¶¶ 3A-4A). Because laughing at a prisoner does “not amount to a constitutional violation[ ] under 42 U.S.C. § 1983, ” it is RECOMMENDED that Plaintiff's claim against Captain Brown be DISMISSED. See Peyton v. Rucker, 101 F. App'x 982, 983 (5th Cir. 2004); see also Rodenv. Sowders, 84 F. ...


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