United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
a former inmate at the Southern Ohio Correctional Facility
(SOCF) in Lucasville, Ohio, brings this action under 42
U.S.C. § 1983 against SOCF Nurse Practitioner Conley and
three John/Jane Doe defendants alleging a violation of his
constitutional rights. This matter is before the Court on
defendant Conley's motion to dismiss (Doc. 9), plaintiffs
memorandum in opposition (Doc. 15), and defendant's reply
memorandum (Doc. 17). This matter is also before the Court on
plaintiffs motion to amend the complaint to identify the John
and Jane Doe defendants (Doc. 16) and defendant's
memorandum in opposition (Doc. 18).
Defendant Conley's motion to dismiss
deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the
Court must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). Only "a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)). A
complaint filed by a pro se plaintiff must be
"liberally construed" and "held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). By the same token, however, the
complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting 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."
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). Although a complaint need not contain
"detailed factual allegations, " it must provide
"more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). The Court need not "accept as true a legal
conclusion couched as a factual allegation."
Twombly, 550 U.S. at 555 (quoting Papasan v.
Attain, 478 U.S. 265, 286 (1986)). A pleading that
offers "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555. Nor
does a complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. at 557. The complaint must
"give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests."
Erickson, 551 U.S. at 93 (citations omitted).
complaint alleges that on July 15, 2016, he began a hunger
strike to protest "an arbitrary guilty finding by the
Rules Infraction Board" for manufacturing "hooch
(alcohol)." (Doc. 3 at 2). He states that on July 18,
2016, he began to experience symptoms of his chronic
conditions of pulmonary embolism and diabetes, including
shortness of breath, lightheadedness, fainting, and
"possibly seizures." (Id.). Plaintiff
alleges he brought this to the attention of Jane/John Doe
nurse during medical rounds.
24, 2016, plaintiff submitted a health service request slip
complaining about his symptoms. He alleges he was seen by
Nurse Hill on July 26, 2016 and explained to her his
symptoms. That same day, plaintiff states he was seen by
defendant Conley, Plaintiff informed Conley of his symptoms
and Conley allegedly told plaintiff he would do nothing for
plaintiff until plaintiff stopped his hunger strike.
31, 2016, Nurse Jane Doe gave plaintiff his medication and
saw he was passed out on the floor. One hour later, she
returned to plaintiffs cell, administered a finger stick, and
observed plaintiffs sugar levels were extremely low. One-half
hour later, plaintiff "was rushed to the infirmary to
have a physical examination." (Id.).
alleges that on August 8, 2016, John/Jane Doe nurse falsely
documented information in an examination report to reflect
that plaintiff was alert and oriented, had even and unlabored
respirations, and was in no acute distress following an
incident where plaintiff stumbled while being escorted from
August 9, 2016, plaintiff ended his hunger strike. He alleges
that Nurse Conley drew his blood, which "showed serious
deficiencies." (Doc. 3 at 3). Conley drew plaintiffs
blood the following day and plaintiff was admitted to the
Ohio State University Hospital, where he received two blood
alleges that defendant Conley violated his First and Eighth
Amendment rights. He also alleges that the John and Jane Doe
defendants violated his Eighth Amendment rights.
Conley seeks dismissal of the complaint on the basis it fails
to state a claim for relief. Defendant Conley also alleges he
is entitled to qualified immunity. Defendant argues that
plaintiff had no right to engage in a hunger strike that
detrimentally affected his health. Defendant alleges
"there is no requirement for Defendant to provide
treatment outside of him instructing Plaintiff to end the
strike to negate his health ailments" and, therefore,
defendant is entitled to qualified immunity. (Doc. 9 at 5).
Plaintiffs First Amendment Claim Against Defendant
complaint alleges that defendant Conley violated his
"First Amendment rights of freedom of speech and right
to assemble through the denial of medical attention until
plaintiff came off his hunger strike." (Doc. 3 at 3).
Liberally construed, plaintiff alleges a First Amendment
retaliation claim against defendant Conley in that Conley
refused plaintiff medical care ...