United States District Court, S.D. Ohio, Western Division
JAMES J. HOWARD, Plaintiff,
MONTGOMERY COUNTY JAIL, et al., Defendants.
M. Rose, District Judge.
REPORT AND RECOMMENDATION  THAT: (1)
DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S SECOND
AMENDED COMPLAINT (DOCS. 50, 52) BE GRANTED; (2)
PLAINTIFF'S SECOND AMENDED COMPLAINT (DOC. 49) BE
DISMISSED; AND (3) THIS CASE BE TERMINATED ON THE COURT'S
Michael J. Newman, United States Magistrate Judge.
a 42 U.S.C. § 1983 civil rights action brought by
Plaintiff James Howard against Montgomery County, Ohio;
Montgomery County Sheriff Phil Plummer; Naphcare, Inc.; and
Naphcare nurses Theresa Wallace and Valerie Beirse. This
action concerns, inter alia, Defendants' alleged
deliberate indifference to Plaintiff's serious medical
condition, i.e., diabetes, while Plaintiff was a
pretrial detainee in the Montgomery County Jail between March
and September 2015. According to Plaintiff, such deliberate
indifference ultimately resulted in the loss of the toes on
his right foot.
before the Court are the following two motions to dismiss
Plaintiff's second amended complaint: (1) a motion filed
by Montgomery County and Sheriff Plummer (collectively
referred to as the “County Defendants”) (doc.
50); and (2) a motion filed by Naphcare, Wallace, and Beirse
(hereinafter collectively referred to as “the Naphcare
Defendants”) (doc. 52). Plaintiff, through his
attorneys, filed memoranda in opposition to Defendants'
motions. Docs. 51, 60. Thereafter, Defendants filed separate
reply memoranda. Docs. 53, 61. The undersigned has carefully
considered all of the foregoing, as well as the allegations
set forth in Plaintiff's second amended complaint, and
Defendants' motions are now ripe for decision.
facts herein include the allegations pled by Plaintiff viewed
in the light most favorable to him. See infra.
Plaintiff James Howard suffers from diabetes. Doc. 49 at
PageID 202. As a result of his diabetes, Plaintiff also
suffers from neuropathy and related nerve damage.
the period from March 28, 2015 to September 21, 2015,
Plaintiff was a pretrial detainee in the Montgomery County
Jail, pursuant to charges filed in the Montgomery County
Common Pleas Court. Id. at PageID 203. While
detained in early May 2015, Plaintiff developed an infection
in one of the toes on his right foot. Plaintiff alleges that
he informed “Defendants” of his infection, but
received inadequate and/or untimely medical care.
Plaintiff's condition deteriorated to the point that
Defendants took him to the emergency department at Grandview
Hospital in Dayton, Ohio for treatment on May 11, 2015.
Id. at PageID 203. By the time Defendants brought
Plaintiff to the hospital, the infection had spread to the
fourth and fifth toes on his right foot, and the fourth toe
had become necrotic. Id.
alleges that, according to the emergency room doctor who then
examined him, two of his infected toes on his right foot
would have to be removed, but that the other three toes could
be saved. Id. The doctor scheduled Plaintiff to
return to the hospital the next day, May 12, 2015, but one of
the deputies or corrections officers remarked that Plaintiff
would not be permitted to return to the hospital the next day
due to security concerns. Id. Instead, Plaintiff was
returned to the hospital three days later on May 14, 2015, at
which time he was evaluated for surgery. Id.
Plaintiff was discharged on May 16, 2015, and the medical
staff at the Jail were given instructions to follow up with
the hospital on May 20, 2015 to discuss what further care
Plaintiff would need, including the likely amputation of one
or more toes. Id. at PageID 203-04. Despite the
continued degradation of his medical condition, Plaintiff was
not returned to Grandview Hospital until June 24, 2015, over
a month later. Id. at PageID 204.
result of the delay in treatment, Plaintiff's condition
deteriorated to the point that it was necessary to amputate
all five toes on his right foot, as well as portion of the
foot itself. Id. Plaintiff now suffers from phantom
limb pain from the missing toes, which are a direct result of
Defendants' failure to provide him with medical care for
his serious medical need. Id.
December 27, 2016, Plaintiff commenced this suit pro
se by seeking leave to proceed in forma
pauperis (“IFP”). Doc. 1. Plaintiff motion
for leave to proceed IFP was granted the same day.
Id. In his original complaint, Plaintiff named the
following as Defendants: Montgomery County; Naphcare; a
“Ms. Theresa”; a “Ms. Vallery”; Jane
Doe #1; and John/Jane Doe x25. Doc. 3 at PageID 39. Plaintiff
never served the original complaint on any of the Defendants
March 15, 2017, Plaintiff filed an amended pro se
complaint prior to the completion of service of process on
any Defendant and prior to the time any responsive pleading
was filed in the case. Doc. 8. The Federal Rules permit
Plaintiff to amend his complaint as a matter of course
without leave having been previously granted by the Court.
Fed.R.Civ.P. 15(a)(1). Thus, as of the filing of the amended
complaint, it superseded the original. See Drake v. City
of Detroit, Michigan, 266 Fed.Appx. 444, 448 (6th Cir.
2008) (stating that “an amended complaint super[s]edes
all prior complaints). In that properly filed amended pro
se complaint, Plaintiff named three Defendants:
Montgomery County Sheriff Phil Plummer; Montgomery County;
and Naphcare. Doc. 8 at PageID 53. Accordingly, as of March
15, 2017, Theresa, Vallery, and all Jane and John Doe
defendants were no longer defendants in this action. See
Hal Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1546 (9th Cir. 1989); see also doc. 28 at
Report and Recommendation issued on May 22, 2017, Judge Merz
-- to whom this case was then assigned -- clarified that the
case was before the Court on Plaintiff's pro se
amended complaint and that the Sheriff, Montgomery County,
and Naphcare were the only named Defendants in this case.
Doc. 28 at PageID 104. In addition, Judge Merz recommended
that the pro se amended complaint be dismissed as
against Naphcare pursuant to Fed.R.Civ.P. 4(m) for lack of
service of process and that the amended complaint as against
the Sheriff and the County be dismissed for failure to state
a claim upon which relief can be granted. Doc. 28 at PageID
Judge Merz stayed the case in an effort to find counsel to
represent Plaintiff. Doc. 33. Thereafter, at the beginning of
January 2018, counsel entered an appearance on behalf of
Plaintiff. Docs. 36, 37, 39. Plaintiff, through new counsel,
objected to the Report and Recommendation issued by Judge
Merz (doc. 40) and, on January 31, 2018, moved for leave to
file a second amended complaint (doc. 43). After briefing by
the parties, Judge Rose granted Plaintiff's motion for
leave to file a second amended complaint on February 15,
2018. Doc. 47. Upon granting Plaintiff leave to file a second
amended complaint, the Court found the Report and
Recommendation -- regarding dismissal of Plaintiff's
amended complaint -- to be moot. Id.; see Drake
v. City of Detroit, Mich., 266 Fed.Appx. 444, 448 (6th
Cir. 2008) (noting that, upon the filing of an amended
complaint, all previous complaints in the case are “a
nullity, because an amended complaint supercedes all prior
February 20, 2018, Plaintiff, through counsel, filed his
second amended complaint (doc. 49, thus mooting and replacing
the allegations in the amended complaint. See Drake,
266 Fed.Appx. at 448. In the second amended complaint,
Plaintiff names the following Defendants: the Montgomery
County Board of Commissioners; Montgomery County Sheriff Phil
Plummer in his official capacity; Naphcare; Naphcare nurse
Theresa Wallace in her individual capacity; and Naphcare
nurse Valerie Beirise in her individual capacity. Doc. 49 at
PageID 200-01. Plaintiff therein asserts claims under 42
U.S.C. § 1983 alleging that: (1) Defendants were
deliberately indifferent to his serious medical needs; and
(2) the County Defendants are liable pursuant to Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)