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Mann v. Ohio Department of Rehabilitation And Corrections

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

June 26, 2019

JEFFREY D. MANN, et al., Plaintiffs,
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS, et al., Defendants.

          George C. Smith Chief Judge.

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS, CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs, state inmates who are proceeding without the assistance of counsel, bring this action under 42 U.S.C. § 1983. This matter is before the Court for consideration of Interested Party, the State of Ohio's Motion to Dismiss[1] (ECF No. 15), Defendants Ohio Department of Rehabilitation and Correction (“ODRC”), Andrew Eddy, David Hannah, [2] and Janice Douglas' (hereinafter, “Defendants”) Motion to Dismiss (ECF No. 20), Plaintiffs' Response in Opposition[3](ECF No. 25), and Defendants' Reply in Support (ECF No. 26). Interested Party, the State of Ohio did not file a Reply. For the following reasons, it is RECOMMENDED that Interested Party, the State of Ohio's Motion to Dismiss (ECF No. 15) and Defendants' Motion to Dismiss (ECF No. 20) be GRANTED IN PART AND DENIED IN PART.

         Furthermore, the Undersigned also RECOMMENDS that Plaintiffs' Motion to Appoint Class Counsel (ECF No. 4) and Plaintiffs' Motion to Certify Claims as a Class Action (ECF No. 5) be DENIED WITHOUT PREJUDICE. Defendants have not responded to either Plaintiffs' Motion to Appoint Class Counsel (ECF No. 4) or Plaintiffs' Motion to Certify Claims as a Class Action (ECF No. 5). Accordingly, the Undersigned recommends that the proper course of action would be for Plaintiffs to re-file these two motions once the Court has finished its consideration of the remaining Motions to Dismiss (ECF Nos. 35 & 43). Any remaining Defendants, then, must file responses to Plaintiffs' motions regarding class counsel and certifying the claims as a class action, given the recent United States Court of Appeals for the Eighth Circuit ruling on an analogous matter. See generally Postawko v. Missouri Dep't of Corr., 910 F.3d 1030 (8th Cir. 2018) (holding that district court did not abuse its discretion in granting a motion for class certification by prisoner plaintiffs alleging Eighth Amendment violations based on inadequate medical screening and care for Hepatitis C).

         I. BACKGROUND

         Plaintiffs are inmates at Grafton Correctional Institution. Plaintiffs initiated this action by filing Motions for Leave to Proceed in forma pauperis on December 4, 2018. (ECF Nos. 1- 3.) Also on December 4, 2018, Plaintiffs filed a Motion to Appoint Class Counsel (ECF No. 4) and a Motion to Certify Claims as a Class Action (ECF No. 5). On December 11, 2019, the Court granted Plaintiffs' Motions for Leave to Proceed in forma pauperis and filed their Complaint. (ECF No. 7.) Plaintiffs bring civil rights claims under 42 U.S.C. § 1983, asserting a violation of their Eighth Amendment rights based on deliberate indifference to serious medical needs relating to Hepatitis C. Plaintiffs allege the following regarding Hepatitis C and cite to exhibits attached to their Complaint:

Hepatitis C is a viral [infection] that affects the liver in humans, causing cirrhosis, fibrosis, fatty liver, liver cancer and other dysfunctions of the liver; (Exhibit B, C & D)
Hepatitis C Virus (HCV) is the tenth leading cause of death in the United States with 10% of all deaths in the U.S. being linked to it; (Exhibit J, CDC Report)
Twenty thousand (20, 000) people died of HCV in 2015, but the number could, in fact, be five times higher; (Exhibit E, CDC Report)
The [prevalence] of chronic HCV infections among prisoners in the U.S. is between 12 and 35 percent (12-35%), compared to about 1.3% in the general population, and the prevalence of end stage liver disease caused by HCV is estimated to be three times higher in prisoners than in those in the general population; (Worman, Howard J. “Diagnosis and Treatment of Chronic Hepatitis C in [I]ncarcerated Patients”, The AMA Journal of Ethics. Feb. 2008)
HCV causes, inter alia, cirrhosis, which leads to fibrosis and interferes with liver function, (Exhibit A), fibrosis, which obliterates the architecture and function of the underlying organ or tissue, (Exhibit B), fatty liver, caused by the disruption of fat metabolism caused by HCV and depositing excessive amounts of fat on the liver, interfering with liver function and leading to liver cancer, caused by fatty liver and genotype 3 HCV, and hepatocyte ballooning, which is necrosis (or dying off) of liver tissue as an inflammatory response to fatty liver and the effects of untreated HCV; (Exhibit [C & D])
In general, treatment of HCV will reverse the process of fatty liver if implemented at an early stage; (Exhibit C)
Treatment for HCV infection is indicated if the virus is present for six months; (Exhibits E and F)
Ninety percent (90%) of HCV infections can be cured with 8-12 weeks of therapy, (Exhibits E and F) and treatment is recommended at the earliest possible stage for maximum efficacy, (Exhibits G and I); and the only treatment is medications, (id);
The indicators for severity of infection are reflected as the “APRI” [ACT Serum to Platelet Ratio Index] which measures the viral load, in combination with determining the extent of [fibrosis], if any; (Exhibit H)
The use of a biopsy for assessment of the existence and extent of fibrosis has been established to be inaccurate, and is disfavored in favor of vibration-controlled transient liver elastography which measures the stiffness of the liver and any resultant cirrhosis or fibrosis;
Treatment is recommended for all patients with chronic HCV infection; (Exhibit I); (cf. Exhibit K)
. . .
The current prison population in Ohio is approximately 53, 000 prisoners;
The low end estimate of 12% of prisoners with HCV calculated for Ohio's prison population equals six thousand, three hundred-sixty (6, 360) prisoners with HCV, while the higher end estimate of 35% yields a figure of eighteen thousand, five hundred-fifty (18, 550) prisoners with HCV in Ohio prisons;
The defendants herein are aware of the prevalence and seriousness of HCV infections among the prisoners in their collective charge, as shown not only by the fact that the defendants distribute informational pamphlets to prisoners freely at the medical departments, (see, e.g. Exhibits N, O, P and Q; provided in an open display for taking at the [Grafton Correctional Institution] medical department on October 20, 2018) but also by the promulgation of policies and protocols addressing testing, diagnosis and treatment for HCV in prisoners; (see, e.g. Exhibits L and M)[.]

(ECF No. 6, at pg. 4-6.) Plaintiffs allege that they all have been diagnosed with HCV infections. (Id. at pg. 8.) Specifically, Plaintiffs allege that Plaintiff Mann was told he would not be eligible for treatment until his APRI level reached 1.5, “even though it was acknowledged that an APRI of over 1.5 indicated the later stages of the [disease], with irreversible damage to the liver and its functions . . . with the stated reason for the delay being the costs[.]” (Id. at pg. 6.) Plaintiffs allege that Plaintiff Bragg was also denied treatment based on his APRI level. (Id. at pg. 7.) Finally, Plaintiffs allege that Plaintiff Pastrano has been continually denied treatment and is also denied periodic blood testing, which Plaintiffs allege is required by Ohio policies and protocols. (Id. at pg. 8.)

         II. STANDARD OF REVIEW

         Defendants bring their motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that Plaintiffs have failed to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of complaints.” 16630 Southfield Ltd., P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in original).

         Although this pleading standard does not require “‘detailed factual allegations,' . . . [a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action, '” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).

         In considering whether a complaint fails to state a claim upon which relief can be granted, the Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., Inc., 491 Fed.Appx. 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.

         In addition, the Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.'” Garrett v. Belmont Cnty. Sheriff's Dep't., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the nature of the claim asserted.'” Frengler v. Gen. Motors, 482 Fed.Appx. 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

         III. ANALYSIS

         As Plaintiffs point out, the two Motions to Dismiss at issue in the instant Report and Recommendation are “virtually identical.” (ECF No. 25, at pg. 1.) Accordingly, the Undersigned will address both Motions to Dismiss simultaneously.

         A. Subject Matter ...


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