Aultman v. Shoop

• Decision Date: 11 February 2021
• Docket Number: Case No. 2:20-cv-3304
• Parties: WILLIAM AULTMAN, Plaintiff, v. TIM SHOOP, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

WILLIAM AULTMAN, Plaintiff, v. TIM SHOOP, et al., Defendants.

Case No. 2:20-cv-3304

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 11, 2021

Magistrate Judge Elizabeth P. Deavers

OPINION AND ORDER

Plaintiff, a state inmate at the Chillicothe Correctional Institution ("CCI"), proceeding through counsel, brings this prisoner civil rights action under 42 U.S.C. § 1983 and state law alleging a violation of his Eighth Amendment rights. With the consent of the parties (ECF No. 26), pursuant to 28 U.S.C. § 636(c), this matter is before the Court for consideration of Defendants' Motion to Dismiss. (ECF No. 20.) Plaintiff has filed a Response (ECF No. 21) and Defendants have filed a Reply. (ECF No. 22.) The Motion to Dismiss is GRANTED, in part, and DENIED, part, as set forth below.

I. BACKGROUND

Plaintiff filed this action on June 29, 2020, asserting claims under 42 U.S.C. § 1983 and state law against the State of Ohio, the Ohio Department of Rehabilitation and Correction,¹ and Tim Shoop, the Warden at CCI, in both his individual and official capacities. In the original Complaint, the primary relief sought was Plaintiff's release from custody as a result of theCoronavirus Disease. Because a challenge to the fact or duration of confinement should be brought as a petition for habeas corpus and is not the proper subject of a civil rights action brought pursuant to § 1983, in the Initial Screen Report and Recommendation issued on July 9, 2020, the Court recommended that Plaintiff's § 1983 claim be dismissed and that supplemental jurisdiction over Plaintiff's state law claim not be exercised. (ECF No. 7.) However, noting that Plaintiff also appeared to be requesting unspecified injunctive or declaratory relief, the Court further recommended that Plaintiff be granted leave to amend his complaint. (Id.) By Order dated July 27, 2020, the District Judge previously assigned to this case overruled Plaintiff's objections to the Report and Recommendation and granted Plaintiff 21 days to amend. (ECF No. 9.)

Plaintiff filed his Amended Complaint on August 17, 2020. (ECF No. 12.) Plaintiff alleges the following. He is a 71-year old man² and a member of the elderly population vulnerable to the Coronavirus. (ECF No. 12 at ¶¶ 6, 14.) In response to the virus, the Governor of Ohio issued a stay at home order prohibiting gatherings of 10 or more people and requiring social distancing. Plaintiff, as a prisoner, is forced to be exposed to more than 10 people and is confined in a situation where social distancing is impossible. (Id. at ¶ 7.) The Governor of Ohio also issued a mask order. (Id. at ¶ 8.) The conditions in the prison have not eased. (Id. at ¶ 9.) Certain Ohio prisons have nearly 80% infection rates and nearly one in ten inmates in Ohio's prison population have tested positive. (Id. at ¶¶ 10, 11.) Confirmed cases and deaths have occurred at CCI. (Id. at ¶ 12.) The housing at CCI is described as "combo" with cells and common areas and the virus is highly contagious. (Id. at ¶ 13.) Based on these allegations, he asserts that his rights are being violated under both the Eighth Amendment and the OhioConstitution Article I, Section 9 arising from the imposition of cruel and unusual punishment. (Id. at ¶¶ 17, 21.)

In terms of relief as to both causes of action, Plaintiff requests:

[T]hat the conditions in the Chillicothe Correctional Institution be declared unsafe and in violation of the Eighth Amendment to the United States Constitution. And,

That the Defendants immediately enunciate a plan that would adequately protect the Plaintiff from the effects of COVID-19, and,

If such a plan is not enunciated and acted upon, that alternative means of serving Plaintiff's sentence be provided.

And any other injunctive and declaratory relief this Court deems appropriate, plus costs and reasonable attorney's fees.

(ECF No. 12 at 4, 5.)

II.

As indicated above, Plaintiff's suit is limited to claims for injunctive and declaratory relief. Defendants seek dismissal on various grounds including Eleventh Amendment immunity, insufficient process, insufficient service of process, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted.³ The Sixth Circuit Court of Appeals has held that"'the Eleventh Amendment is a true jurisdictional bar,'" requiring Defendants' entitlement to sovereign immunity to "'be decided before the merits.'" Doe v. DeWine, 910 F.3d 842, 848 (6th Cir. 2018) (quoting Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015)). Accordingly, the Court will begin its analysis there.

A. Eleventh Amendment Immunity

1. State of Ohio/ODRC

Actions brought against the State or an "arm of the state" are subject to the doctrine of sovereign immunity under the Eleventh Amendment. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). "Eleventh Amendment immunity 'bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, by citizens of another state, foreigners or its own citizens.'" Canada v. Thumb Corr. Facility, No. 20-10027, 2020 WL 1666443, at *2 (E.D. Mich. Apr. 3, 2020) (quoting McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012. The ODRC, as an arm of the State of Ohio, also is immune from suit in a federal court under the Eleventh Amendment. Jones v. Swank, No. 2:11-CV-797, 2012 WL 4107981, at *8 (S.D. Ohio Sept. 19, 2012) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984)).

This is so "unless the State consents to the suit or unless Congress, pursuant to a valid exercise of power, indisputably consents its intent to abrogate state immunity." Smith v. DeWine, 476 F. Supp. 3d 635, 650 (S.D. Ohio 2020) (citing Bedford v. Kasich, No. 2:11-cv-351, 2011 WL 1691823, at *7, 2011 U.S. Dist. LEXIS 51903, at *19 (S.D. Ohio May 4, 2011)). The Stateof Ohio has not waived its Eleventh Amendment immunity in a § 1983 action. Rolle v. Burnaugh, No. 1:19-CV-821, 2020 WL 2571488, at *2 (S.D. Ohio May 21, 2020), report and recommendation adopted, No. 1:19CV821, 2020 WL 3036066 (S.D. Ohio June 5, 2020) (citing Wolfel v. Morris, 972 F.2d 712, 718 (6th Cir. 1992)). Further, Congress did not abrogate Ohio's immunity when it enacted 42 U.S.C. § 1983. Id. (citing Quern v. Jordan, 440 U.S. 332, 338, 345 (1979)). Accordingly, the Eleventh Amendment bars Plaintiff's § 1983 claims against the State of Ohio and/or the ODRC. McAllister v. Kent State Univ., 454 F. Supp. 3d 709, 717 (N.D. Ohio 2020).

Likewise, Plaintiff's state law claim against Ohio and/or the ODRC asserting a violation of the Ohio Constitution is barred by the Eleventh Amendment. Smith v. DeWine, 476 F. Supp. 3d at 651 (citing Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005) (en banc) ("[T]he states' constitutional immunity from suit prohibits all state-law claims filed against a [s]tate in federal court, whether those claims are monetary or injunctive in nature.")). This is so absent an unequivocally express waiver. Jackson-Forbes v. Indus. Comm'n, No. 2:18-CV-1544, 2020 WL 433380, at *3 (S.D. Ohio Jan. 28, 2020). For state law claims, the State of Ohio has consented to suit only in the Ohio Court of Claims. Ohio Rev. Code § 2743. Id.; see also Allen v. Ohio Dep't of Job & Family Servs., 697 F. Supp. 2d 854, 908 (S.D. Ohio 2010) ("The Sixth Circuit has repeatedly and consistently held that the State of Ohio has not consented to be sued for state law claims in federal court. Rather, Ohio has consented to be sued in only one forum—the Ohio Court of Claims.") ODRC also is entitled to sovereign immunity as to Plaintiff's state law claim because it is an arm of the State of Ohio. Jackson-Forbes, 2020 WL 433380, at *3 (citing Longstreet v. State of Ohio, Indus. Com'n., No. 1:05CV1749, 2005 WL 3298883, at * 2 (N.D. Ohio Dec. 5, 2005)).

2. Warden Shoop

Any state law claim against Warden Shoop in either his individual or official capacity also is subject to dismissal. "The Supreme Court has squarely held that pendent state law claims against state officials in their official capacity are barred by the Eleventh Amendment. . . ." Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520-21 (6th Cir. 2007). "[F]ederal courts are simply not open to such state law challenges to official state action, absent explicit state waiver of the federal court immunity found in the Eleventh Amendment." Id.; see also Smith v. DeWine, 476 F.Supp.3d 635, 651-652 (S.D. Ohio 2020) (claim for violation of Ohio Constitution against state defendant in official capacity dismissed because Ex Parte Young does not apply when the alleged violation is one of state law). This is so regardless of the nature of the relief sought. In re Ohio Execution Protocol Litig., 709 F. App'x 779, 787 (6th Cir. 2017) (Sutton J., concurring) ("If the plaintiff sues a state official under state law in federal court for actions taken within the scope of his authority, sovereign immunity bars the lawsuit regardless of whether the action seeks monetary or injunctive relief.").

As to Warden Shoop in his individual capacity, state employees are immune from civil liability under Ohio law for injuries caused in the performance of the employee's duties "unless the . . . employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless . . . the . . . employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner." Ohio Rev. Code § 9.86. However, the Ohio Court of Claims that has the "exclusive, original jurisdiction to determine, initially, whether the . . . employee is entitled to personal immunity under section 9.86. . . ." Ohio Rev. Code § 2743.02(F). Federal courts, including this Court, therefore cannot exercise supplemental jurisdiction over state law claims against a state employee in his or her individual capacity until the Ohio Court of Claimsdetermines that the employee is not entitled to immunity under Ohio Revised Code §...