United States District Court, S.D. Ohio, Western Division
MICHAEL R. BARRETT, JUDGE.
matter is before the Court upon Plaintiff Terry Tyrone Pullen
Jr.'s Motion for Extension of Time. (Doc. 9). Plaintiff
seeks to file objections to the Magistrate Judge's August
21, 2017 Report and Recommendation (“R&R”).
deadline for filing objections to the August 21, 2017 R&R
was September 5, 2017. No objections were filed by that date.
On September 7, 2017, this Court adopted the Magistrate
Judge's August 21, 2017 R&R. (Doc. 8).
Plaintiff's Motion for Extension of Time was filed the
Court notes that Plaintiff signed the Motion for Extension of
Time on September 1, 2017, which was before the deadline for
the filing of objections. “[A] pro se prisoner's
complaint is deemed filed when it is handed over to prison
officials for mailing to the court.” Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008). Absent
contrary evidence, the “handing-over” occurs on
the date the motion was signed. Id. Therefore, the
Court rescinds its Order adopting the Magistrate Judge's
August 21, 2017 R&R. Plaintiff Terry Tyrone Pullen
Jr.'s Motion for Extension of Time (Doc. 9) is
GRANTED and the Court will now consider
Plaintiff's Objections as being timely filed. (Docs. 10,
August 21, 2017 R&R, the Magistrate Judge recommends that
Plaintiff's complaint be dismissed with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1), with the exception of the following claims: (1)
Eighth Amendment claim for the use of excessive force against
Defendant Combs, based on Plaintiff's allegations that
Combs sprayed him in the eye with pepper spray on October 9,
2015; (2) excessive force claims against Defendants Ms.
Felts, Sgt. Felts, and Sgt. Bear, based on his allegations
that these defendants attacked him on November 10, 2015; (3)
excessive force claim against Defendants Sgt. Felts and C/O
Shaw based on his allegation that these defendants sprayed
him with a fogger can of mace on October 30, 2015; (4) claim
that Defendants Sgt. Felts, Oppie, Bailey, Shaw, and Haywood
violated Plaintiff's Eighth Amendment rights by failing
to allow him to detox after being sprayed with mace; (5)
failure to protect claim, based on his allegation that Shaw
and C/O Clere failed to protect him from inmate Peyton during
the October 11, 2015 incident; and (6) claim that defendants
Hill, Hart, and Jane Doe nurse allegedly denied him medical
care. The Magistrate Judge explained that Plaintiff's
other claims failed to state a claim upon which relief may be
Objections, Plaintiff argues that his claims against
Defendants Davis, Nolan, Warden Erdos and Mahlman should not
be dismissed because Plaintiff has stated a claim against
these defendants. Plaintiff explains that these defendants
were deliberately indifferent to his health in safety in that
they failed “to take corrective action once having
knowledge or put on notice of Plaintiff[‘s] need of
protection from attacks by prisoner's [sic] and
retaliation by officers. As the Magistrate Judge noted,
Warden Erdos is not named as a defendant in this action.
(Doc. 7, PAGEID # 242). Moreover, as the Sixth Circuit has
“[S]imple negligence is insufficient to support
liability of [supervisory officials] for inadequate training,
supervision, and control of individual officers.”
Hays [v. Jefferson County, 668 F.2d 869, 872 (6th
Cir. 1982)]. A supervisory official may not be held liable
under § 1983 for the misconduct of those the official
supervises unless the plaintiff demonstrates that “the
supervisor encouraged the specific incident of misconduct or
in some other way directly participated in it.”
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984). “At a minimum a plaintiff must show that the
official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the
offending officers.” Hays, 668 F.2d at 874.
Supervisory liability under § 1983 cannot be based upon
a mere failure to act but must be based upon active
unconstitutional behavior. Bass, 167 F.3d at 1048.
Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir.
2002). Plaintiff has only alleged that these defendants were
on notice of the various incidents. There are no allegations
that these defendants encouraged the incidents. Therefore,
there is no error in the Magistrate Judge's conclusion
that Plaintiff has failed to state a claim against Defendants
Davis, Nolan, Warden Erdos and Mahlman.
Plaintiff's objections to the Magistrate Judge's
August 21, 2017 R&R (Docs 10, 13) are
OVERRULED. The Court again
ADOPTS the Magistrate Judge's August 21,
2017 R&R (Doc. 7).
IS SO ORDERED.
The objections filed on
September 21, 2017 (Doc. 10) and September 22, 2017 (Doc. 13)