IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONALD BLOODWORTH,

Plaintiff,

vs. Civil Action 2:10-CV-1122

Judge Marbley

Magistrate Judge King

DEBORA A. TIMMERMAN-COOPER,

WARDEN, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state inmate formerly incarcerated at the London

Correctional Institution (“LoCI”), brings this civil rights action

under 42 U.S.C. § 1983. This matter is before the Court on Defendant

William Bierbaugh’s Motion to Dismiss (“Bierbaugh’s Motion to

Dismiss”), Doc. No. 70. Plaintiff opposes Bierbaugh’s Motion to

Dismiss. Plaintiff’s Opposition to Defendant Bierbaugh’s Motion to

Dismiss (“Plaintiff’s Response”), Doc. No. 81. Defendant Bierbaugh

has not filed a reply. For the reasons that follow, it is RECOMMENDED

that Bierbaugh’s Motion to Dismiss be GRANTED. 

Plaintiff’s Third Amended Complaint, Doc. No. 34, alleges three

categories of misconduct by various employees at LoCI. First,

plaintiff alleges that employees of LoCI engaged in secret

surveillance of his activities. Id. (counts I, II, III). Second, he

alleges that employees of LoCI improperly examined and tampered with

his mail and communications. Id. (counts IV, V, VI, VII, IX, X). 

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Third, he alleges that employees of LoCI prohibited him from entering

the dining facility in retaliation for his filing of grievances. Id.

(count VIII). On August 28, 2012, the Court dismissed counts I, II,

III, VIII and X of the Third Amended Complaint for failure to state a

claim. See Order, Doc. No. 71, p. 2. 

Defendant Bierbaugh now moves to dismiss plaintiff’s claims under

Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim

upon which relief can be granted. Motion to Dismiss, p. 1. 

A motion to dismiss under Rule 12(b)(6) attacks the legal

sufficiency of the complaint. See Roth Steel Prods. v. Sharon Steel

Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether

dismissal on this basis is appropriate, a complaint must be construed

in the light most favorable to the plaintiff, and all well-pleaded

facts must be accepted as true. See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.

Supp. 734, 738 (S.D. Ohio 1994). The United States Supreme Court has

explained that “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations

in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

(2007). However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do.” Id. at 555. “Factual allegations

must be enough to raise a right to relief above the speculative

level[.]” Id. Accordingly, a complaint must be dismissed if it does

not plead “enough facts to state a claim to relief that is plausible

on its face.” Id. at 570.

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Bierbaugh’s Motion to Dismiss argues that the Third Amended

Complaint should be dismissed, as against defendant Bierbaugh, because

it contains no factual allegations against this defendant. Bierbaugh’s

Motion to Dismiss, pp. 1, 3. Plaintiff does not contest that there

are no factual allegations against defendant Bierbaugh. Rather,

plaintiff argues that it would be improper to dismiss the claims

against defendant Bierbaugh prior to plaintiff’s identification of the

John Doe defendants. See Plaintiff’s Response, pp. 2-4. 

The identification of the John Doe defendants has no bearing on

whether plaintiff has stated a claim against defendant Bierbaugh. 

Defendant Bierbaugh is a named defendant; plaintiff does not, as he

contends, see id. at p. 5, need discovery to reveal Bierbaugh’s

“identity.” The Third Amended Complaint contains no factual

allegations whatsoever against defendant Bierbaugh,1 let alone facts

sufficient to state a colorable claim against him. 

It is therefore RECOMMENDED that Defendant William Bierbaugh’s

Motion to Dismiss, Doc. No. 70, be GRANTED. 

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 Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 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

1

 The only reference to defendant Bierbaugh in the Third Amended

Complaint is an allegation that he is employed as a corrections officer at

LoCI. Third Amended Complaint, p. 9. 

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

The parties are specifically advised that 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 of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

November 16, 2012 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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