United States District Court, S.D. Ohio, Western Division
WALTER E. PARK, III, Plaintiff,
GREG HOLDREN, et al., Defendants.
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
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. (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).
Defendants' 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) (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).
a complaint need not contain "detailed factual
allegations," it must provide "more than an
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).
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
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.
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.
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"; 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.
Plaintiffs response does not address defendants'
arguments for dismissal.
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.
The complaint fails to state a claim for relief under the
Eighth Amendment against defendants Cool and
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 ...