UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL DAUGHERTY,

Plaintiff,

Civil Action 2:10-cv-01069

v. Judge Peter C. Economus

Magistrate Judge E.A. Preston Deavers

WARDEN DEBORAH 

TIMMERMAN-COOPER, et al.,

Defendant.

REPORT AND RECOMMENDATION

This matter is before the Court on the Motion of Defendants Ernie Moore and Deborah

Timmerman-Cooper for Judgment on the Pleadings. (ECF No. 23.) Relying heavily on the

Court’s June 28, 2011 Report and Recommendation, which recommended dismissal of

Defendants Wingard, Taylor, and Mickley, the remaining Defendants contend that Plaintiff’s

Complaint fails to state a claim for relief and that they are entitled to Eleventh Amendment

immunity.1 For the reasons that follow, it is RECOMMENDED that the Court GRANT

Defendants’ Motion for Judgment on the Pleadings and DISMISS Defendants Moore and

Timmerman-Cooper.

I. BACKGROUND

Plaintiff, a prisoner proceeding pro se, brings this action against Defendants Moore and

Timmerman-Cooper alleging that they have violated his Eighth Amendment rights. The Court

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 Defendants also assert that Plaintiff has failed to exhaust administrative remedies. 

Given the conclusion that Defendants are entitled to dismissal, the Court finds it unnecessary to

reach this issue.

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has previously described Plaintiff’s allegations as follows:

Plaintiff maintains that following a verbal altercation with Defendant Taylor, he was

placed into a cell with two other inmates and forced to sleep on a mattress that was

placed directly on a concrete floor for a ten day period. Plaintiff maintains that the

above circumstances represented inhumane and intolerable living conditions. He

contends that the special housing units to which the prison personnel assigned him

were designed only for “double celling” inmates. Plaintiff further asserts that his 65

square foot cell, which he shared with two other inmates, failed to meet the space

requirement standards set forth by the American Correctional Association (“ACA”).

Additionally, Plaintiff maintains that while sleeping on a mattress on the floor he

developed arthritis in his back. According to Plaintiff, this led to back spasms that

lasted four days. Plaintiff asserts that although he requested to see a nurse for his

back pain on multiple occasions, the corrections officer on duty refused to call for

medical assistance.

Plaintiff contends that Defendants intentionally caused the conditions that led to the

alleged constitutional violations. Plaintiff seeks declaratory and injunctive relief to

prevent prison officials from “triple celling” inmates and forcing one of those

inmates to sleep on the floor. Furthermore, he seeks monetary damages related to his

back pain.

(Report & Recommendation 1–2, ECF No. 20.)

Plaintiff’s Complaint is devoid of any allegations specifically directed at Defendant

Moore, the former Director of the Ohio Department of Rehabilitation and Correction (“ODRC”). 

Plaintiff alleges that Defendant Timmerman-Cooper, the Warden of the London Correctional

Institute, intentionally caused him to be subject to cruel and unusual punishment. 

In February 2011, former Defendants Wingard, Taylor, and Mickley, moved to dismiss

Plaintiff’s claims for failure to state a claim and failure to exhaust administrative remedies. On

June 28, 2011, the undersigned issued a Report and Recommendation, recommending dismissal

of the former Defendants. The Report and Recommendation concluded that Plaintiff’s claims

failed against the moving Defendants in either their individual or official capacities. The Report

and Recommendation was adopted on July 27, 2011 and Defendants Wingard, Taylor, and

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Mickley were dismissed from this action.

Defendants Moore and Timmerman-Cooper filed their Motion for Judgment on the

Pleadings on August 26, 2011. Plaintiff has failed to respond to Defendants’ Motion.

II. STANDARD

Rule 12(c) of the Federal Rules of Civil Procedure allows a party to “move for judgment

on the pleadings.” Fed. R. Civ. P. 12(c). The Court evaluates a motion filed under Rule 12(c)

using the same standard as a Rule 12(b)(6) motion to dismiss. See Roth v. Guzman, 650 F.3d

603, 605 (6th Cir. 2011).

Under Federal Rule of Civil Procedure 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). 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, 566 U.S. 662, ---, 129 S.Ct. 1937, 1949 (2009). 

Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). 

Instead, 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 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.; see also

New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011)

(holding, pursuant to Iqbal and Twombly, that a plaintiff must allege sufficiently specific facts to

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state a facially plausible claim even if such facts are in the hands of the defendants).

In considering whether this facial plausibility standard is met, a Court must construe the

complaint in the light most favorable to the non-moving party, accept all factual allegations as

true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations

omitted). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle

Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept

as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.

III. ANALYSIS

Plaintiff’s Complaint does not identify whether he brings his claims against Defendants

in their individual or official capacities. Regardless of the capacity in which Plaintiff brings his

claims, Plaintiff’s claims ultimately fail.

As set forth above, the Court previously concluded that Plaintiff failed to state any

conditions of confinement claims against Defendants Wingard, Taylor, and Mickley in their

individual capacities. In assessing Plaintiff’s condition of confinement claims against

Defendants Moore and Timmerman-Cooper, the Court incorporates the legal authority and

reasoning outlined in the prior Report and Recommendation. (See Report & Recommendation

4–11, ECF No. 20.) For the same basic reasons, Plaintiff’s Complaint also fails to state

conditions of confinement claims against Defendants Moore and Timmerman-Cooper in their

individual capacities. As detailed in the previous Report and Recommendation, triple celling

and being forced to sleep on a mattress on the floor do not, in and of themselves, demonstrate a

deprivation of a basic human need. Furthermore, Plaintiff has failed to plead sufficient facts to

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demonstrate that Defendants Moore or Timmerman-Cooper were aware that Plaintiff’s

conditions of confinement were causing him back pain. Finally, with regard to Plaintiff’s

medical indifference claim, he has failed to plead facts suggesting that Defendants Moore or

Timmerman-Cooper were personally involved with the alleged refusal of medical care.

The Court also finds that to the extent Plaintiff is suing Defendants in their official

capacities, his claims fail. Once again, the Court incorporates the discussion of these issues

within the previous Report and Recommendation. (See Report & Recommendation 11–14, ECF

No. 20.) To the extent Plaintiff seeks monetary damages, the Eleventh Amendment bars suit

against Defendants Moore and Timmerman-Cooper, who are state employees. See Rodgers v.

Banks, 344 F.3d 587, 594 (6th Cir. 2003) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58,

66 (1989)). Additionally, as explained in the prior Report and Recommendation, to the extent

Plaintiff seeks injunctive relief against Defendants Moore and Timmerman-Cooper under the Ex

parte Young doctrine, he fails to allege that he is being subject to an ongoing violation of federal

law.

IV. CONCLUSION

It is RECOMMENDED that the Court GRANT the Motion of Defendants Moore and

Timmerman-Cooper for Judgment on the Pleadings. (ECF No. 23.) It is further

RECOMMENDED that the Court DISMISS Defendants Ernie Moore and Deborah

Timmerman-Cooper and remove this action from the Court’s pending case list. 

V. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

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Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: November 17, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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