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Park v. Holdren

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

July 31, 2018

WALTER E. PARK, III, Plaintiff,
v.
GREG HOLDREN, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, brings this action under 42 U.S.C. § 1983 alleging violations of his civil rights. Plaintiff originally named as defendants SOCF Health and Safety Coordinator Greg Holdren and three John Doe defendants. Plaintiff subsequently identified two John Doe defendants as William Cool and Anthony Cadogan. (See 8/04/2017 docket entry; see also Doc. 14). The undersigned issued a Report and Recommendation on April 20, 2018, recommending that defendant Holdren's motion to dismiss be granted.[1] (Doc. 30). This matter is now before the Court on defendants Cool and Cadogan's motion to dismiss the complaint (Doc. 23), plaintiffs response in opposition (Doc. 31), and defendants' reply memorandum (Doc. 32).

         I. Defendants' motion to dismiss

         In 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) (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, the-defendant-unlawfully-harmed-me accusation." 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).

         Plaintiffs complaint alleges that on February 13, 2016, he awoke at 4:00 a.m. to the smell and sight of raw sewage in his cell. (Doc. 3 at 5). The complaint alleges that the entire cell block was flooded with sewage water. Id. Plaintiff alleges that the corrections officer noticed when making his rounds that "the entire block was flooded with a lot of human feces visibly floating on the top of the sewage water." Id. The corrections officer then contacted the shift supervisor, who "made his rounds and investigated the major flooding issue." Id. The shift supervisor noticed that "all of the toilets in the cells over ran and there was water coming up from the 4 showers non-stop," and "the water inside of all of the toilets was level with the top of the seat." Id. Plaintiff alleges that he was forced to remain in his cell under these conditions for 12 hours "with the possibility of catching some type of skin disease which I now suffer from." Id. at 6. He also alleges he was "forced to eat in this condition with floating feces present." Id.

         Plaintiff alleges he filed an Informal Complaint regarding the incident and on February 18, 2016, defendant Holdren, the Health and Safety Coordinator, responded that "a plumber was notified and the flooding was due to the inmates flooding the range, and that chemicals were available in the block to clean the ranges." Id. at 5. Plaintiff claims there was a delay in the use of bio-hazard chemicals, and as a result the Institutional Inspector granted his grievance. Plaintiff alleges violations of his Eighth Amendment rights and seeks monetary damages.

         Defendants Cool, the Deputy Warden of Operations, and Cadogan, the Deputy Warden of Special Services, seek dismissal of the complaint on the grounds the complaint fails to state a claim for relief; they are entitled to Eleventh Amendment immunity; they are entitled to qualified immunity; plaintiffs claims are barred by the doctrines of collateral estoppel and res judicata; and plaintiffs claims are barred by the Leaman Doctrine because he filed a similar action in the Ohio Court of Claims. (Doc. 23). Defendants argue that the complaint fails to state a claim for relief under the Eighth Amendment against them because plaintiff makes no factual allegations against either Cool or Cadogan in the complaint. Id. at 14-15.

         In response to the motion to dismiss, plaintiff alleges he was being held in solitary confinement at SOCF; he is being denied access to legal materials by defendants' subordinates; his personal property, legal work and legal books were thrown away or stolen recently as retaliation; the third John Doe defendant, who plaintiff claims he identified as Robert Setty on December 1, 2017, has not been properly served or "filed"[2]; and plaintiffs motion to amend the complaint to add defendants has not been ruled on. (Doc. 31). Plaintiff argues that leave to amend is warranted because the defendants he proposed to add in his motion will attest that their supervisors ordered defendants to leave plaintiff and other inmates in their cells in the raw sewage. Id.

         A. Plaintiffs response does not address defendants' arguments for dismissal.

         Plaintiffs response to defendants' motion to dismiss does not address their arguments for why plaintiffs claims against Cool and Cadogan must be dismissed. Plaintiffs allegations that unnamed individuals have retaliated against him are unrelated to his claims against Cool and Cadogan, which allege deliberate indifference in connection with the flooding that occurred on February 13, 2017. Further, the fact that a named individual has not been substituted for the third John Doe defendant has no bearing on whether defendants Cool and Cadogan should be dismissed from the lawsuit. Similarly, plaintiffs motion for leave to amend the complaint is not material to these defendants' motion to dismiss. The undersigned has recommended that plaintiff be denied leave to amend the complaint to add nine new defendants who "were present, and worked the J4 block during the sewage flood, passed trays out, and did not document the sewage incident nor take action to remedy the situation." (Doc. 30 at 12-13). As explained in the Report and Recommendation, allowing plaintiff to amend the complaint to add these new individuals as defendants would be futile because the complaint, as amended, would not survive a motion to dismiss. Thus, plaintiff has not presented a valid reason to deny the motion to dismiss.

         B. The complaint fails to state a claim for relief under the Eighth Amendment against defendants Cool and Cadogan.

         The Eighth Amendment requires prison officials "to provide humane conditions of confinement." Farmer v. Brennan,511 U.S. 825, 832 (1994). However, "[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment." Ivey v. Wilson,832 F.2d 950, 954 (6th Cir. 1987). Rather, "[t]he Eighth Amendment is concerned only with 'deprivations of essential food, medical care, or sanitation,' or 'other conditions intolerable for prison confinement.'" Richmond v. Settles,450 Fed.Appx. 448, 455-56 (quoting Rhodes v. Chapman, 452 U.S. 337, 348 (1981)). To establish an Eighth Amendment violation, a plaintiff must first demonstrate objectively the unique deprivation of "the minimal civilized measure of life's necessities." Id. at 454 (quoting Rhodes, 452 U.S. at 347). He ...


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