Palladeno v. Mohr

TED PALLADENO, Plaintiff-Appellant, v. GARY C. MOHR; ROGER WILSON; ROBERT HAMMOND; JOHN DESMARAIS; BRIAN WITTRUP; CYNTHIA B. MAUSSER; GINNY LAMNECK; KIMBERLY CLIPPER; KEVIN JONES; DONALD MORGAN; WARDEN JOHN COLEMAN; TERRY COLLINS; JOHN DOE, 1-99, Defendants-Appellees, STATE OF OHIO, Interested Party-Appellee.

No. 20-3587

United States Court of Appeals, Sixth Circuit

September 13, 2021

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: NORRIS, KETHLEDGE, and NALBANDIAN, Circuit Judges.

OPINION

ALAN E. NORRIS, CIRCUIT JUDGE.

Plaintiff Ted Palladeno is a prisoner in the custody of the Ohio Department of Rehabilitation and Correction (ODRC). He filed an eighty-five-count suit against several named Ohio prison officials and ninety-nine "John Doe" defendants. The district court dismissed the suit on its pleadings and two of his claims are before us on appeal: (1) deliberate indifference to a serious medical need under the Eighth Amendment and (2) violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. For the reasons that follow, we affirm.

I.

Plaintiff has been incarcerated in various Ohio Department of Rehabilitation and Correction ("ODRC") facilities and during the periods relevant to this litigation he was held in protective custody.^[1]

In November 2016, plaintiff filed a pro se complaint in the Southern District of Ohio, along with motions (1) to proceed in forma pauperis, (2) to appoint counsel, (3) to certify the case as a class action, (4) for a preliminary injunction, (5) for prisoner release orders, and (6) to seal portions of the complaint. The court granted in forma pauperis status and the motion to seal, denied all other motions, and directed plaintiff to file an amended complaint because a prisoner proceeding pro se cannot represent other prisoners in a federal class action.

Plaintiff obtained counsel and filed a nearly identical amended complaint, still in the form of a class action with more than 100 class representatives. The case was eventually transferred to the Northern District of Ohio because plaintiff was an inmate at a federal facility in Toledo.

The district court granted a motion to dismiss all claims, which was filed by the State of Ohio as an interested party. Because the alleged injuries were a series of individual claims, rather than claims common to the named plaintiffs the court dismissed eighty-one of the eighty-five counts due to misjoinder under Fed.R.Civ.P. 20 & 21. The court dismissed the remaining four claims, which were personal to plaintiff, for failure to state a claim. Plaintiff appeals the dismissal of two of those four claims: (1) deliberate indifference to a serious medical need in violation of the Eighth Amendment and (2) violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132.

Plaintiff's claim of deliberate indifference to his serious medical need arises out of his time at Toledo Correctional Institution ("ToCI"). In support of that claim, plaintiff alleges in the amended complaint:

Plaintiff Palladeno has consistently been told by specialists outside of the ODRC that he must be provided a walking cane, the medications Nuerontin and Tramadol, as was the recommendation in a teleconference with an Ohio State University Neurologist on July 15, 2015. Palladeno suffers from Neuropathy, a condition affecting his L4 and L5 vertebrae, as well as his S1 nerve (all in his lower back area). The ODRC has treated his condition (on and off) for years, however ToCI refuses to provide the treatment recommended by the OSU Neurologist, which is (in general) the same treatment intermittently provided by the ODRC over the years. Without treatment, Palladeno's legs will periodically (and without warning) go numb and fail to support him. Palladeno has suffered very serious injuries on several occasions due to falls occurring as a direct and proximate result of the ODRC's failure to provide treatment for his serious medical need. The most recent fall was down a sixteen-riser metal tread stair on February 1, 2016, between 1:00-1:30 P.M. in Unit B-1 and 2 East. After several MRI's and a Cat scan, St. Vincent's treated Palladeno by providing a cane, and the medication Lyrica. Upon returning to ToCI, both the medication and the use of the cane was discontinued.

Compl. ¶50.

His ADA claim also relates to his back condition but arises from his time at Oakwood Correctional Facility. The amended complaint states:

Plaintiffs contend that the PC prisoners with elevator passes (because they have physical disabilities that render them unable to use the stairs) have no means to exit the structure if there was a fire, which violates not only the Eighth and Fourteenth Amendments, but also the Americans with Disabilities Act. This is so because the affected Plaintiffs (Buck, Metcalf, Palladeno, and others similarly situated) were required to have medications and meals brought to their cells during the roughly six-month period when the elevator was being replaced. Clearly if they were unable to walk down the steps from the second floor to get medication and meals, then they would also be unable to use the fire exit stairs in a fire. Further, these Plaintiffs were precluded from going to the library, law library, visiting room, recreation, etc., during this time period because all are located on the first floor. Regardless, grievances were filed specifically advising Defendants of the risk of death if there were a fire, however no measures were taken to abate the risk.^[2]

Compl. ¶84.

II.

This court reviews de novo the grant of a motion to dismiss for failure to state a claim. Rudd v. City of Norton Shores, 977 F.3d 503, 511 (6th Cir. 2020). For a complaint to survive a motion to dismiss requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). On review, we accept a complaint's factual allegations as true, draw all reasonable inferences in plaintiff's favor, and consider those facts and inferences to determine whether the claim plausibly entitles plaintiff to relief. Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (citations omitted).

A.

The Eighth Amendment "'forbids prison officials from unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference toward'" an inmate's serious medical needs. Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012) (quoting Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004)). Such a claim "contains both an objective component-a 'sufficiently serious medical need'-and a subjective component-a 'sufficiently culpable state of mind.'" Griffith v. Franklin Cnty., Ky., 975 F.3d 554, 567 (6th Cir. 2020) (quoting Blackmore, 390 F.3d at 895).

"A sufficiently serious medical need 'is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Id. (quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). To satisfy the subjective prong, a culpable state of mind, a plaintiff "'must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs'- indifference that offends the 'evolving standards of decency' under the Eighth Amendment." Reilly, 680 F.3d at 624 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). That requires a showing that one or more prison officials had "a sufficiently culpable state of mind." Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

"Persons sued in their individual capacities under § 1983 can be held liable based only on their own unconstitutional behavior." Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). To the extent that a plaintiff seeks to hold defendants liable as supervisors in their individual capacities, he must show they "either encouraged the specific incident of misconduct or in some other way directly participated in it." Id. (quoting Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir. 1982)). A plaintiff must set forth facts that allege "that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Id.

Like the district court, we accept that plaintiff has satisfied the first prong-that plaintiff has a serious medical need. But the complaint fails to make an allegation against any defendant, either named or a John Doe, ^[3] who acted with deliberate indifference in withholding treatment. In fact the complaint never alleges any wrongful conduct by anyone that is causally connected to the violation alleged. See Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016). Instead plaintiff concedes in the complaint that the treatment of his neuropathy has been on-again, off-again, and it speaks of institutions and otherwise alleges facts in the passive voice. Though we draw all reasonable inferences in favor of plaintiff, we cannot fill gaps of this size.

The complaint was not clear, but if plaintiff intended to allege that one of the named defendants was responsible in a supervisory capacity, the complaint needed to set forth facts alleging "that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Heyerman, 680 F.3d at 647.

The district court did not err in concluding that plaintiff failed to state a claim under the Eighth Amendment.

B.

Title II of the ADA provides that no qualified individual with a disability shall, because of that disability, "be denied the benefits of the services, programs, or...