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Foster v. State

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

March 28, 2018

STATE OF OHIO, et al., Defendants.

          Black, J.



         Plaintiff is a prolific prisoner litigant, filing multiple motions in numerous cases in the state and federal courts.[1] This Report and Recommendation (“R&R”) addresses three dispositive matters in the above-captioned case: (1) Defendants' motion for judgment on the pleadings (Doc. 80); (2) Plaintiff's motion for reconsideration or Relief of Order on Issues of Injunctive Relief and Temporary Restraining Order (Doc. 86); and (3) Plaintiff's Motion to Amend/Correct Complaint (Doc. 94). Seven additional non-dispositive matters have been addressed by separate Order filed this same day.

         I. Background

         Plaintiff, who is currently incarcerated at the Southern Correctional Facility (SOCF), filed this §1983 action alleging violations of his civil rights while he was incarcerated at the Toledo Correctional Institution (ToCI), as well as after his transfer to SOCF. Plaintiff previously had filed three or more cases that had been dismissed at the screening stage, prompting initial review under 28 U.S.C. § 1915(g), a “three strikes” provision included in the Prison Litigation Reform Act (“PLRA”) intended to prevent frivolous and/or vexatious prisoner litigation.

         Plaintiff's current complaint alleges that while at ToCI, Plaintiff suffered poor treatment, including but not limited to the improper disposal of his legal work and other property. In September 2014, he was transferred to SOCF, where Plaintiff alleges that he was subjected to racist and derogatory remarks, and was physically assaulted by a number of officers, including Defendants Rankin, Southworth, Neff, Parish, and John Doe, and possibly Workman. Plaintiff alleges that Defendant “Dr. Ahmed Fiscal” denied him medical care after the assault, and continues to deny him care for a skin disease. The original complaint contains additional allegations regarding Plaintiff's conditions of confinement, as well as an attack on Plaintiff's conviction and sentence. Plaintiff's original complaint identified the following Defendants: the State of Ohio, Toledo Correctional Institution (ToCI), SOCF, and “several State actors” including Warden John Coleman, a group of unnamed ToCI correctional officers, Lt. Beiderman, Kelly Robertson, a group of unnamed Caucasian correctional officers, CO Southworth, Rardin, Neff, T. Parish, Cpt. Workman, Roger Wilson, Dr. Ahmed Fiscal (later corrected to Dr. Faisal Ahmed), DWSS Cadogan, DWO Cool, WMA Davis, Warden Morgan, CO Steve Carter, Major Warren, Ms. Aldridge, Sgt. Bear, Sgt. Felts, O'Connor, Oppy, Hammerick, Lt. Phillips, Nurse Coons, Danhoff, Ohio Attorney General Mike DeWine, Assistant Attorney General Christopher Bagi, DWO Bowerman, Lt. Copley, David Bobby, and Warden Erdos. (Docs. 1, 2).

         Based upon Plaintiff's litigation history and number of prior dismissals, the undersigned filed an R&R on October 11, 2016 recommending that Plaintiff's motion to proceed in forma pauperis in this case be denied, and that this case be dismissed unless Plaintiff immediately paid the full filing fee. The relevant statutory provision, 28 U.S.C. § 1915(g), prohibits frequent filers with a similar history of dismissals from “proceeding IFP ‘unless the prisoner is under imminent danger of serious physical injury.'” Bruce v. Samuels, 136 S.Ct. 627, 630 (2016) (citing 28 U.S.C. § 1915(g), emphasis added).

         On December 5, the presiding district judge rejected the October 11, 2016 R&R, concluding that Plaintiff had adequately alleged “imminent danger” in a manner that permitted him to file this lawsuit without prepayment of a filing fee, based upon four separate documents that were not before the undersigned at initial screening, but instead were filed in response to the R&R. (Doc. 9 at 3). The Court liberally construed the collection of documents as objections, since “[e]ach of these filings attempt to address the …recommendation that Plaintiff be denied in forma pauperis status pursuant to 28 U.S.C. § 1915(g).” (Doc. 9 at 1-2). The Court specifically cited new allegations that “[s]taff members have been planning their next attack on me, ” and that Plaintiff does not “know when the C/Os that once attacked me previously or Bare [sic], the sergeant that threatens to attack me regularly here is going to act.” (Id., citing Docs. 7 and 8), as well as Plaintiff's reference to being denied medical treatment for a “skin disease.” (Id.)

         Based upon the rejection of the R&R dismissing this lawsuit under 28 U.S.C. §1915(g), the undersigned re-screened Plaintiff's initial complaint under 28 U.S.C. §1915(e). In addition, the undersigned screened the allegations in a construed amendment to the complaint that Plaintiff filed on January 27, 2017. (See Doc. 10). Pursuant to a second R&R filed on February 28, 2017 and adopted by the Court on April 18, 2017, the Court dismissed most claims and defendants, but permitted four specific claims to go forward, against Defendants Rardin, Southworth, Neff, Parish, John Doe, Workman, Warden Erdos, Dyer, Bear, Dyer, and Dr. Ahmed:

(1) Eighth Amendment excessive force claims against defendants Rardin, Southworth, Neff, Parish, John Doe, and Workman based on plaintiff's allegation that these officers attacked him upon his arrival to SOCF; (2) excessive force claim against Sgt. Bear based on the January 17, 2017 attack; (3) deliberate indifference claim against Dr. [Faisal Ahmed]; and (4) conditions of confinement claims at SOCF, including plaintiff's claims regarding wheelchair accessibility, against defendants Warden Erdos, Dyer, and Bear.

(Doc. 12 at 12, PageID 62; adopted at Doc. 25).

         It is worth noting that after service of the complaint/supplemental complaint on the four referenced claims, the undersigned discovered that Plaintiff has previously filed other complaints that contain remarkably similar allegations, one or more of which complaints also were previously dismissed based upon the referenced “three strikes” provision and/or for failure to pay the requisite filing fee.[2] As the undersigned previously explained, however, it is unclear whether any prior dismissal(s) would bar the instant suit, in light of Plaintiff's new assertion of “imminent danger.” (See Doc. 43 at 6, PageID 246).

         In any event, other than the four referenced claims, the Court found that “the remaining allegations in the complaint fail to state a claim upon which relief may be granted” and therefore recommended full dismissal of “the remainder of the complaint.” (Doc. 12 at 12). The Court determined that Plaintiff could not recover monetary damages because the State of Ohio enjoys Eleventh Amendment immunity. The Court also dismissed all claims against ToCI, SOCF and the Ohio Department of Rehabilitation and Correction, since only “a person” acting under color of state law is subject to suit or liability under 42 U.S.C. §1983. Additionally, the Court dismissed Plaintiff's conspiracy claims as insufficient to state a claim upon which relief may be granted. The Court dismissed Plaintiff's claims relating to the failure to investigate and/or respond to his grievances as insufficient to state a claim under § 1983. The Court held that Plaintiff also failed to state a claim upon which relief may be granted with respect to the alleged destruction of his personal property, whether that claim was brought as a due process claim or, with respect to the alleged destruction of his legal materials, as a First Amendment right of access to the courts. The Court held that Plaintiff could not challenge the validity of his criminal conviction or continued incarceration in this civil rights case. The Court also dismissed any claims seeking to hold defendants liable for threats and verbal harassment, since such allegations are not sufficient to state a viable claim under the Eighth Amendment. Finally, the Court dismissed a long list of “conclusory” allegations against an even longer list of would-be individual defendants: Steve Carter, Major Warren, Roger Wilson, O'Connor, Oppy, Hammerick, Lt. Phillips, Coons, Danhoff, John Doe, Nurse Koons, Mike DeWine, Christopher Bagi, D.W.O. Bowerman, Lt. Copley, and David Bobby. (See Doc. 12. at 11-12).

         Initially, service was perfected only on Defendants Rardin, Parish, Bear, Erdos and Dyer. Defendants John Doe and Southworth (who died in 2014) were dismissed. Multiple motions filed by Plaintiff seeking default judgments against various Defendants based upon their alleged failures to answer or otherwise respond to Plaintiff's complaint were denied. (Docs. 43, 56). Summons was later issued to Defendants: Neff, Workman, and Dr. Ahmed. (Docs. 43, 44, 45). All Defendants then filed answers and/or amended answers, (Docs. 62, 63, 65, 66, 67), and moved for judgment on the pleadings on November 28, 2017.

         Pursuant to the Court's calendar order, discovery was set to conclude on March 15, 2018, with all dispositive motions to be filed on or before May 15, 2018 (Doc. 52). However, discovery appears to be incomplete, as Defendants filed a motion to stay all discovery shortly after they moved for judgment on the pleadings. (Doc. 84).

         Throughout this case, Plaintiff has kept up a frenetic pace of motion practice. In an Opinion and Order filed on November 2, 2017, the undersigned warned Plaintiff that future repetitive and frivolous motions would be summarily denied:

Due to the number of repetitive and procedurally improper motions filed by Plaintiff to date, requiring the significant expenditure of judicial resources, Plaintiff is STRONGLY CAUTIONED to avoid filing additional frivolous motions prior to the close of discovery on March 15, 2018. If Plaintiff files additional repetitive motions they will be summarily denied without further analysis.

(Doc. 77 at 11). In an R&R filed on the same date, the undersigned also denied five dispositive motions filed by Plaintiff: (1) two motions for a preliminary injunction and temporary restraining order; (2) Plaintiff's application for entry of default; (3) Plaintiff's motion for default judgment against Dr. Ahmed; (3) Plaintiff's multi-part motion to strike and to order the state to cease torture; and (4) Plaintiff's motion for judgment on the pleadings.

         Plaintiff filed multiple documents that were liberally construed by the presiding district judge as objections (and supplements to objections), all of which the Court found to be “without merit.” (Doc. 81 at 1, n.1). In overruling Plaintiff's objections, the presiding district judge also cautioned Plaintiff, warning him that his filings have been in violation of Fed.R.Civ.P. 11, because they “consist largely of foul, repetitive, and completely unsubstantiated denigrations of the Magistrate Judge's impartiality and character, ” and placing him on notice that “[f]urther such behavior will not be tolerated” and “will result in sanctions, potentially including the summary dismissal of this case.” (Doc. 81 at 2, n.1, PageID 502).

         Having related the relevant procedural background of this case, the undersigned turns now to the pending dispositive motions, beginning with Defendants' motion for judgment on the pleadings.

         II. Pending Dispositive Motions

         A. Defendants' Motion for Judgment on the Pleadings (Doc. 80)

         Defendants assert that they are entitled to judgment under Rule 12(c), Fed.R.Civ.P. on grounds that in October 2014, Plaintiff previously filed suit in the Court of Claims based on the same core events alleged in his federal lawsuit - that the Defendants used excessive force against him in September 2014 when he arrived at SOCF. Public records from the Court of Claims confirm that Plaintiff filed a complaint in that court on October 7, 2014, in which he alleged that the ODRC failed to protect him and engaged in a physical assault against him, when multiple officers beat him shortly after his arrival at SOCF. See Foster v. Ohio Dept. of Rehab and Correction, et al., (Ohio Court of Claims No. 2014-00807JD). In the same complaint, Plaintiff alleged that Dr. Ahmed had engaged in abuse by discontinuing pain pills and Plaintiff's wheelchair, [3]generally denying Plaintiff access to a wheelchair, and engaging in medical malpractice. Plaintiff further complained that Dr. Ahmed and the ODRC were in violation of the Americans With Disability Act, as well as in violation of institutional rules and policies based upon the conditions of confinement provided for mentally ill inmates, including a lack of medical treatment, lack of stimulation, isolation, lack of recreation, extreme temperatures, and similar conditions-of-confinement complaints. Plaintiff included a statement in his Court of Claims complaint that he “can go to Federal Court and now prove you are doing this with deliberate indifference to serious medical needs next year.” Id.

         Defendants' motion argues that all of Plaintiff's claims in this federal case are barred by the Leaman doctrine and/or by res judicata. Alternatively, Defendants argue that they are entitled to qualified immunity. As explained below, the undersigned concludes that Defendants are entitled to partial judgment on two of the four claims delineated in this case.

         1. Standard of Review

         A district court reviews a Rule 12(c) motion for judgment on the pleadings under the same standard applicable to a Rule 12(b)(6) motion to dismiss. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). In considering a motion to dismiss, the Court must “construe the complaint in the light most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007). While such determination rests primarily upon the allegations of the complaint, “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)) (emphasis omitted).

         2. The Leaman Doctrine Bars Two Claims Regarding Events of September 2014 and Claims Against Dr. Ahmed

         It is well established that states are entitled to sovereign immunity from suit, absent an express waiver of that immunity. “The Ohio Court of Claims Act waives the state's sovereign immunity and declares that the state consents to be sued in the Court of Claims.” Leaman v. Ohio Dept. of Mental Retardation & Dev. Disabilities, 825 F.2d 946, 951 (6th Cir. 1987)(en banc), cert. denied, 487 U.S. 1205 (1998). In relevant part, Ohio R.C. § 2743.02(A)(1) provides:

Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, that the filing party has against any [state] officer or employee, as defined in section 109.36 of the Revised Code. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or ...

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