IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Atropin Palmer, :

Plaintiff, : Civil Action 2:11-cv-503

v. : Judge George C. Smith

Sheriff Fred Abdalla, : Magistrate Judge Kemp

Defendant. :

OPINION AND ORDER

This matter is before the Court on Plaintiff Atropin

Palmer’s objections to a Report and Recommendation issued by the

Magistrate Judge on October 26, 2011 and on Defendant Sheriff

Fred Abdalla’s separate objections to the same Report and

Recommendation (Docs. 19 and 20). The Court, having reviewed the

record de novo, finds for the reasons set out below that the

objections to the Report and Recommendation are without merit. 

The parties’ objections are OVERRULED and the Report and

Recommendation is ADOPTED. Defendant’s motion to dismiss or for

judgment on the pleadings is DENIED. Mr. Palmer’s motion for

default judgment is DENIED.

Mr. Palmer has also filed a Motion for Reconsideration (Doc.

19) of the Magistrate Judge’s Order denying Mr. Palmer’s motion

for appointment of counsel. Mr. Palmer’s Motion for

Reconsideration of his Motion for Appointment of Counsel is

DENIED. 

I. PROCEDURAL BACKGROUND

On October 26, 2011, the Magistrate Judge recommended

denying Defendant’s motion to dismiss or for judgment on the

pleadings and also recommended denying Mr. Palmer’s motion for

default judgment. The objections filed by the parties have only

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addressed the recommendation to deny Defendant’s motion to

dismiss. 

Mr. Palmer objected to that recommendation arguing that the

complaint should be liberally construed, and that he should be

permitted to conduct discovery. It appears that Mr. Palmer has

misread the Report and Recommendation, because the Magistrate

Judge did, in fact, conclude that the complaint should be

liberally construed and recommend that Defendant’s motion to

dismiss be denied. 

Sheriff Abdalla objected to the Magistrate Judge’s

conclusion that Mr. Palmer’s complaint alleged a policy or custom

on the part of the Jefferson County Jail to deny prisoners

additional blankets in cold conditions. That objection is

discussed below. 

II. LEGAL STANDARD

When objections are received to a Magistrate Judge’s Report

and Recommendation on a dispositive matter, the assigned District

Judge “shall make a de novo determination ... of any portion of

the magistrate judge’s disposition to which specific written

objection has been made ....” Fed. R. Civ. P. 72(b). After

review, the District Judge “may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the

matter to the magistrate judge with instructions.” Id.; see also

28 U.S.C. §636(b)(1)(B). General objections are insufficient to

preserve any issues for review; “[a] general objection to the

entirety of the magistrate's report has the same effects as would

a failure to object.” Howard v. Secretary of Health and Human

Services, 932 F.2d 505, 509 (6th Cir. 1991). 

III. DISCUSSION

The Court reviews de novo the Magistrate Judge’s recommended

conclusion that Mr. Palmer’s complaint alleged a policy or custom

on the part of the Jefferson County Jail to deny prisoners

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additional blankets in cold conditions. Sheriff Abdalla argues

that the complaint does not contain the words “policy” or

“custom,” and he argues that an official agency policy cannot be

inferred from the fact that Mr. Palmer’s multiple requests for

additional blankets were denied. 

The word “policy” is not a magic word. See, e.g., Zherka v.

City of New York, N.Y., No. 08 CV 9005(LAP), 2010 WL 4537072, *3

(S.D.N.Y. Nov. 9, 2010). Using that term in the complaint does

not save the complaint if the complaint lacks sufficient factual

allegations to make the alleged policy plausible. Id. On the

flip side of the same coin, the absence of the word “policy” in

the complaint is not fatal if facts from which a policy can be

inferred are alleged. See, e.g., Kelley v. DeMasi, No. 07-13236,

2008 WL 4298475, *6 (E.D. Mich. Sept. 18, 2008) (holding that the

plaintiff had sufficiently alleged that the defendant’s policy

and or practice was instrumental in violating of his

constitutional rights in spite of the omission of the words

“policy” or “practice” from the allegations in the complaint). 

Sheriff Abdalla does not dispute that one of the avenues for

proving the existence of a municipality's illegal policy or

custom is to look to the municipality's official agency policies. 

Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). 

He also does not dispute that the term “‘official policy’ often

refers to formal rules or understandings - often but not always

committed to writing -that are intended to, and do, establish

fixed plans of action to be followed under similar circumstances

consistently and over time.” Pembaur v. City of Cincinnati, 475

U.S. 469, 480-81 (1986). However, he disagrees as to the extent

of the facts that need to be alleged in order to plead the

existence of such official policies. In particular, Sheriff

Abdalla seeks to distinguish the case cited by the Magistrate

Judge in support of his recommendation, Wheat v. NYC Dep’t of

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Correction, No. 10 Civ. 5459(SAS), 2010 WL 5129065 (S.D.N.Y. Dec.

15, 2010). However, the allegations in Wheat from which a policy

can be inferred are remarkably similar to the allegations here. 

The complaints in both actions allege multiple requests for

relief from multiple jail officials. In Wheat, the plaintiff

alleged that he asked two officers about shoes and none were

provided, he then filed a formal grievance that went unanswered,

and a fellow inmate also filed a formal grievance that was

unanswered. 2010 WL 5129065 at *1. Here, Mr. Palmer alleged,

“Plaintiff, on several occasions requested that jail officials

provide an additional blanket which was to no avail.” (Compl. at

¶ 8.) The word “several” is defined as being “more than two or

three but not many,” which indicates that both the plaintiff in

Wheat and Mr. Palmer requested relief at least three or four

times. WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 1068 (2d ed.

1984). Further, Mr. Palmer’s allegation indicates that these

requests were made of “officials,” which means that more than one

official denied him relief. 

Sheriff Abdalla points out that the period of deprivation in

Wheat, which was approximately 2 1⁄2 weeks from May 17, 2010 to

June 3, 2010 (see Wheat, 2010 WL 5129065 at *1), was longer than

Mr. Palmer’s four-day stay. However, that is not relevant to the

existence of a policy so much as to the degree of the injury,

which is not currently an issue before the Court. Sheriff

Abdalla also argues that in Wheat there were allegations that the

prison did not have shoes to provide to inmates. However, the

prison could have an official policy regarding an item (such as

shoes or blankets) regardless of whether there was a shortage of

the item, so that factor does not persuade the Court that there

should be a different result here. The fact that certain of the

requests for relief in Wheat were formal grievances that were

unanswered is not a meaningful distinction in this instance

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because Mr. Palmer alleged that the Jefferson County Jail has no

grievance procedure to his knowledge. 

Finally, Sheriff Abdalla places great emphasis on the fact

that the plaintiff in Wheat alleged that a fellow inmate was also

denied shoes and received no response to his official grievance. 

While relevant, such an allegation is not necessary in order to

infer an official policy. Indeed, imposing such a pleading

requirement might run afoul of the Supreme Court’s holding in

Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 167-68 (1993), which precluded

courts from applying a heightened pleading standard to §1983

cases against municipalities. In that case, the Court

specifically held that a requirement that plaintiffs plead more

than a single instance of misconduct was a heightened pleading

standard that was “impossible to square” with the “liberal system

of ‘notice pleading’ set up by the Federal Rules.” Id. at 168. 

Here, Mr. Palmer has alleged facts from which the Court can

reasonably infer that Defendant had a policy of denying prisoners

additional blankets in cold conditions. 

IV. DISPOSITION

Upon de novo review in accordance with the provisions of 28

U.S.C. §636(b)(1)(B), the Court OVERRULES the parties’ objections

(Docs. 19 and 20) and ADOPTS the Report and Recommendation (Doc.

17). Defendant’s motion to dismiss or for judgment on the

pleadings (Doc. 8) is DENIED. Mr. Palmer’s motion for default

judgment (Doc. 10) is DENIED.

It is further ordered that Mr. Palmer’s Motion for

Reconsideration (Doc. 19) of the order denying his motion for

appointment of counsel (Doc. 16) is DENIED. 

IT IS SO ORDERED.

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/s/ George C. Smith 

George C. Smith

United States District Judge

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