United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM UNITED STATES DISTRICT JUDGE
22, 2018, Howard Boddie, Jr., a former Ohio state prisoner,
filed this civil rights action pursuant to 42 U.S.C.
§1983 against Charlotte Jenkins, former warden at the
Chillicothe Correctional Institution (“CCI”);
Norm Robinson, also a warden at CCI; Alice Ault and Beth
Higgenbotham, CCI health care administrators; and Medical
Director Dr. Andrew Eddy. Plaintiff alleges that while he was
incarcerated at CCI, he was denied proper medical treatment
for: symptoms stemming from an orbital fracture of his right
eye; a left shoulder injury (for which he received surgery in
December of 2016 after his release from incarceration on May
26, 2016); a right groin injury resulting in a gluteus
minimus tear (he refers to his treatment at the OSU Wexner
Medical Center in 2011 for chest pain, which including the
placement of a catheter in the right groin area); left wrist
pain (stemming from a prior injury and surgery); symptoms
attributed to a prior knee surgery in May, 2009; and right
foot heel spurs.
4, 2018, the magistrate judge issued a report and
recommendation following an initial screen of the complaint
pursuant to 28 U.S.C. §1915(e)(2). The magistrate judge
noted that plaintiff had previously filed substantially
similar claims against the above defendants and others in the
case of Boddie v. Higginbotham, 2:14-cv-2395. In
that case, the complaint and prison grievances filed by
plaintiff reveal that plaintiff complained about
defendant's treatment of the same medical conditions he
refers to in the instant case. The judge assigned to that
case accepted the recommendation of the magistrate judge that
the case be dismissed as barred by the two-year statute of
limitations applicable to §1983 actions in Ohio. See
Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.
1989)(en banc). In a decision filed on February 3, 2017, the
Sixth Circuit Court of Appeals affirmed the dismissal.
Boddie v. Higginbotham, Court of Appeals No.
16-3502. See No. 2:14-cv-2395, Doc. 47.
report and recommendation, the magistrate judge concluded
that, insofar as plaintiff's claims mirror those asserted
against the defendants in the prior case, they are barred by
the doctrine of res judicata. The magistrate judge
also recommended that the instant action be dismissed because
plaintiff's claims are barred by the two-year limitations
period. The magistrate judge noted that because the complaint
in this case was filed on May 22, 2018, any claims which
arose prior to May 22, 2016, are barred. Defendants had no
further involvement in plaintiff's medical care following
his release from custody on May 26, 2016. The magistrate
judge observed that the complaint fails to allege the denial
of any medical treatment during the four-day period from May
22, 2016, to plaintiff's release from incarceration.
matter is before the court on plaintiff's objection (Doc.
6) to the magistrate judge's report and recommendation.
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. §636(b)(1); see also
Fed.R.Civ.P. 72(b). Upon review, the Court “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. §636(b)(1). Although plaintiff's objection
was filed one day late, the court will consider the
magistrate judge correctly explained, 28 U.S.C. §1915(e)
requires sua sponte dismissal of an action upon the
court's determination that the action is frivolous or
malicious, or upon determination that the action fails to
state a claim upon which relief may be granted. Grinter
v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). Courts
conducting initial screens under §1915(e) apply the
motion to dismiss standard. See, e.g.,
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)
(applying Fed.R.Civ.P. 12(b)(6) standards to review under 28
U.S.C. §§1915A and 1915(e)(2)(B)(ii)).
ruling on a motion to dismiss under Rule 12(b)(6) construe
the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as
true, and determining whether plaintiff undoubtedly can prove
no set of facts in support of those allegations that would
entitle him to relief. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Bishop v. Lucent Techs., Inc., 520
F.3d 516, 519 (6th Cir. 2008). To survive a motion to
dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal
theory.” Mezibov v. Allen, 411 F.3d 712, 716
(6th Cir. 2005). While the complaint need not contain
detailed factual allegations, the “[f]actual
allegations must be enough to raise the claimed right to
relief above the speculative level” and “state a
claim that to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
addition, a complaint showing on its face that relief is
barred by an affirmative defense is properly subject to a
12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted. Rauch v. Day and Night
Manuf. Corp., 576 F.2d 697, 702 (6th Cir. 1978)(holding
that a limitations defense may be raised by a Rule 12
motion); see also Riverview Health Institute LLC v.
Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir.
2010); New England Health Care Employees Pension Fund v.
Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir.
2003)(dismissal on limitations ground).
objection, plaintiff argues that the magistrate judge erred
in applying the res judicata and limitations bars.
The court agrees with the analysis of the magistrate judge.
The claims asserted in this case involve the defendants'
alleged failure to provide plaintiff with medical treatment
for the same conditions he described in his 2014 case.
magistrate judge also correctly noted that plaintiff's
allegations concerning the medical treatment he received
after his release from incarceration for the same
pre-existing injuries that were the subject of the 2014 case
do not salvage his untimely medical indifference claims
because a difference of opinion over an appropriate treatment
or diagnosis of a medical condition is insufficient to state
a claim of deliberate indifference under the Eighth
Amendment. The complaints and records in this case and the
2014 case show that this is not a case where no medical
treatment was provided. Rather, plaintiff disagreed with the
type of treatment being provided. A complaint does not state
an Eighth Amendment claim merely by pleading that the
plaintiff disagrees with the diagnosis of prison medical
personnel or the treatment provided by the institution.
Estelle v. Gamble, 429 U.S. 97, 107-08 (1976)
Rhinehart v. Scutt, 509 Fed.Appx. 510, 513 (6th Cir.
2013)(neither negligence alone, nor a disagreement over the
wisdom or correctness of a medical judgment is sufficient to
allege a deliberate indifference claim); Chapman v.
Parke, 946 F.2d 894 (table), 1991 WL 203080 at *2 (6th
Cir. Oct. 4, 1991)(difference of opinion regarding treatment
is insufficient to state an Eighth Amendment claim).
his objection, plaintiff submitted new exhibits consisting of
medical records relating to his treatment following his
release from incarceration and the grievances he filed in
March and April of 2016. Plaintiff may not offer, for the
first time in an objection, evidence which was never
presented to or considered by the magistrate judge. Murr
v. United States, 200 F.3d 895, 902 n. 1 (6th Cir.
the court were to consider these documents, the grievances
and the institution's responses to those grievances show
that the medical staff at CCI were not indifferent to
plaintiff's complaints; rather, plaintiff disagreed with
the nature of the treatment he received. The grievances also
establish that plaintiff had knowledge of his claims prior to
the start of the limitations period. Likewise, the recent
medical records document plaintiff's post-release
treatment for his pre-2014 orbital and wrist fractures and
right heel spurs, and his 2011 treatment for chest pains.
These records show, at most, a difference of opinion over the
appropriate treatment or diagnosis of plaintiff's
conditions, and are insufficient to support a claim under the
magistrate judge also did not err in rejecting
plaintiff's argument that his claims are saved by the
continuing violations doctrine. The continuing violation
doctrine allows for tolling based on continuing unlawful
acts. The Sixth Circuit has recognized two categories of
continuing violations: 1) those alleging serial violations;
and 2) those identified with a longstanding and demonstrable
policy of discrimination. Sharpe v. Cureton, 319
F.3d 259, 266 (6th Cir. 2003). The continuing violation
doctrine is rarely applied in §1983 cases. Id.
at 267. The Sixth Circuit held in plaintiff's previous
case that his claim was not tolled by the continuing
violation doctrine. The Sixth Circuit noted that
plaintiff's claim reflected, at most, a dispute over the
proper course of his medical treatment rather than a
continuing set of wrongs which would give rise to a
continuing violation for statute of limitations purposes.
See Boddie v. Higginbotham, 2:14-cv-2395, Doc. 47,
pp. 6-7. This court concludes that the same reasoning applies
to plaintiff's claims in the instant case.
the magistrate judge correctly found that none of the Ohio
statutes relied on by plaintiff support his assertion that
his claims are not barred by the statute of limitations.
Those statutes, specifically Ohio Rev. Code
§§2305.09(B), 2305.10(B), 2305.11(B), 2305.113(B),