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.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of the Motion of Defendants Curtis

Wingard, Stanley Taylor, and Mike Mickle to Dismiss (ECF No. 10). The moving Defendants

maintain that Plaintiff has failed to state a claim for which relief can be granted and has failed to

exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). For the reasons that follow, it

is RECOMMENDED that the Court GRANT Defendants’ Motion and DISMISS Defendants

Curtis Wingard, Stanley Taylor, and Mike Mickle.

I. BACKGROUND

Plaintiff, a prisoner proceeding pro se, brings this action against the moving Defendants,

who are state employees working for the Ohio Department of Rehabilitation (“ODRC”) at the

London Correctional Institute (“LOCI”), alleging that Defendants subjected him to cruel and

unusual punishment in violation of the Eighth Amendment of the United States Constitution. 

Plaintiff’s claim is based on the conditions of his confinement. Specifically, 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

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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.

As noted above, Defendants Wingard, Taylor, and Mickle (collectively Defendants) have

moved to dismiss Plaitniff’s Complaint. Defendants maintain that Plaintiff has failed to state a

claim against them with regard to both his conditions of confinement and medical indifference

claims. Defendants further assert that Plaintiff has failed to fully exhaust his administrative

remedies. Plaintiff opposes Defendants’ Motion to Dismiss on both grounds.

II. STANDARD OF REVIEW

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

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of action,’ ” is insufficient. Ashcroft v. Iqbal, --- U.S. ----, ----, 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. 

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, and in this case has

done so. 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 who in addition to the moving Defendants brings claims against Deborah

Timmerman-Cooper, the Warden of LOCI, and Ernie Moore, the Director of the Ohio

Department of Rehabilitation and Correction (“ODRC”),1

 does not identify whether he is

bringing his claims against Defendants in their official or individual capacities. Because

1

 Defendants Timmerman-Cooper and Moore have answered Plaintiff’s Complaint.

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Plaintiff seeks monetary damages,2

 the undersigned will assume, for the purposes of the

foregoing analysis, that Plaintiff is attempting to hold Defendants liable in their individual

capacities. The undersigned will also consider whether Plaintiff states a sufficient claim for

injunctive relief against the moving Defendants in their official capacities. 

A. Individual Capacity Claims

1. Non-Medical Conditions of Confinement Claims

a. Applicable Law

Within his Complaint, Plaintiff’s primary claim is that Defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment by placing him in a 65 square

foot cell with two other inmates and forcing him to sleep on mattress upon a concrete floor. 

Regardless of whether Plaintiff appropriately brings these claims against the moving

Defendants,3 the undersigned finds that Plaintiff has failed to plead sufficient facts to state a

claim for relief on these grounds. 

2

 Defendants, as state employees, would be immune from a suit for monetary damages

because “the Eleventh Amendment bars § 1983 suits seeking money damages against states and

against state employees sued in their official capacities.” 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)). Because the

undersigned ultimately concludes that Plaintiff has failed to state individual claims against the

moving Defendants, it is unnecessary to decide whether Plaintiff’s Complaint gives proper

notice of an intent to hold Defendants individually liable. See id. (“[W]e employ a ‘course of

proceedings’ test to ascertain whether a § 1983 defendant was on notice that the plaintiff

intended to hold him or her personally liable, notwithstanding the plaintiff's failure to provide

explicit notice.”)

3

 As noted above, Defendants maintain that Plaintiff has failed to exhaust his

administrative remedies as required pursuant to 42 U.S.C. § 1997e. Plaintiff, on the other hand,

contends in part that his failure to exhaust should be excused because prison staff failed to give

him access to the appropriate grievance materials. Nevertheless, because the undersigned

ultimately concludes that Plaintiff fails to state claims against the moving Defendants, it is

unnecessary to reach this issue. 

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As the Supreme Court has noted, “[i]t is undisputed that the treatment a prisoner receives

in prison and the conditions under which he is confined are subject to scrutiny under the Eighth

Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Consequently, prison officials

“must provide humane conditions of confinement; prison officials must ensure that inmates

receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal

quotations omitted). 

Furthermore, the United States Court of Appeals for the Sixth Circuit has specifically

provided:

An Eighth Amendment conditions-of-confinement claim has two elements. “First,

the deprivation alleged must be, objectively, sufficiently serious; a prison

official's act or omission must result in the denial of the minimal civilized

measure of life's necessities.” [Farmer, 511 U.S. at 834] (internal quotation marks

and citations omitted). Second, the prison official’s “state of mind [must be] one

of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson v.

Seiter, 501 U.S. 294, 302-03, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)).

Spencer v. Bouchard, 449 F.3d 721, 728 (6th Cir. 2006). Finally, to state a viable conditions of

confinement claim “extreme deprivations are required . . . [b]ecause routine discomfort is ‘part

of the penalty that criminal offenders pay for their offenses against society,’ . . . .” Hudson v.

McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

In Rhodes, the Supreme Court addressed an allegation of overcrowding based on the

double celling of inmates within a 63 square foot cell. 452 U.S. at 339–41. The district court

below had found that such conditions were unconstitutional citing, the inmates long terms of

imprisonment; the fact the prison housed more inmates than its design capacity; studies that

suggested that inmates be given greater living space; the fact that the inmates spent most of their

time in their cells; and the fact that the condition was not temporary. Id. at 348. The Supreme

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Court found that the conditions in question were not enough to constitute cruel and unusual

punishment. Id. at 347. The Court emphasized that the overcrowding did not lead to a

deprivation of other basic needs; did not increase violence among inmates; and that the

conditions did not “inflict[] unnecessary or wanton pain [and were not] grossly disproportionate

to the severity of crimes warranting imprisonment.” Id. at 348–49.4 

Since Rhodes, numerous courts, including both the Sixth Circuit and this Court, have

emphasized that double or triple celling inmates, without more, is insufficient to state a

constitutional claim. Halliburton v. Sunquist, 59 F. App’x 781, 782 (6th Cir. 2003) (“[D]oublecelling, by itself, does not violate the Eighth Amendment. . . . Nor did [the plaintiff] allege that

he was denied basic human needs such as food, warmth, or sanitation by virtue of the allegedly

overcrowded conditions.”); Davis v. Strickland, No. 2:09-CV-015, 2009 WL 2998980, at *3

(S.D. Ohio Sept. 15, 2009) (following Rhodes in holding that double-celling, standing alone, was

not a violation of the Eighth Amendment); Strickler v. Waters, 989 F.2d 1375, 1382 (4th Cir.

1993) (“Finally, it is well established that ‘double or triple celling of inmates is not per se

unconstitutional.’ ”) (quoting Williams v. Griffin, 952 F.2d 820, 824 (4th Cir.1991)); McCree v.

Sherrod, No. 09-cv-601, 2010 WL 850117, at *2 (S.D. Ill. Mar. 5, 2010) (“Although the

Supreme Court has not yet spoken on the issue of triple-celling, at least two Courts of Appeal

have done so, concluding that triple-celling is not per se unconstitutional.”); see also Krause v.

Leonard, 352 F. App’x 933, 936 n.10 (5th Cir. 2009) (“[The inmate] has not presented any

4

 Last month the United States Supreme Court issued a decision regarding overcrowding

in California prisons. Brown v. Plata, No. 09–1233, 2011 WL 1936074 (May 23, 2011). This

case concerned a three-judge District Court order to reduce the State’s prison population to

remedy ongoing constitutional violations. See id. at 6. The undersigned has reviewed this case

and finds that it does not alter the constitutional “overcrowding” analysis in this case.

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evidence that putting three men in a two-person cell inflicts unnecessary or wanton pain or is

grossly disproportionate to the severity of crimes warranting imprisonment.”) (internal quotation

and citation omitted). 

Various courts have also considered the constitutional implications of forcing a prisoner

to sleep on a mattress resting upon the floor. For example, the United States Court of Appeals

for the Sixth Circuit has noted that being forced to sleep in a cold cell on a mattress on the floor

in a cell regularly sprayed with insecticides for a six day period “does not rise to the level of a

constitutional violation.” Wells v. Jefferson Cnty. Sheriff Dept., 35 F. App’x 142, 143 (6th Cir.

2002) (citing Walker v. Mintzes, 771 F.2d 920, 925-26 (6th Cir. 1985)); see also Grissom v.

Davis, 55 F. App’x 756, 757–58 (6th Cir. 2003) (holding that a plaintiff put on “mattress

restriction” failed to state a claim absent allegations that the restriction “deprived her of basic

human needs or caused her to suffer serious harm”); Myrick v. Buchanan, 929 F.2d 701, 1991

WL 43926, at *1 (6th Cir. 1991) (table) (finding that Plaintiff’s “unpleasant experiences” over a

seventeen day period which included “sleeping on a mattress on the floor” did not amount to an

Eighth Amendment violation). Other federal courts to reach the issue have also indicated that

forcing a sentenced inmate to sleep on a mattress on the floor, without further deprivations, does

not generally amount to a constitutional violation. See, e.g., Lindsey v. Shaffer, No. 10–4139,

2011 WL 477739, at *1 (3rd Cir. 2011) (finding that being required to sleep on a mattress on the

floor was not an Eighth Amendment violation); Blackwell v. Selig, 26 F. App’x 591, 592 (8th

Cir. 2001) (holding, in part, that “sleeping on the floor on a four-inch thick mattress for five

nights did not amount to an unconstitutional condition of confinement”); Chavis v. Fairman, 51

F.3d 275, 1995 WL 156599, at *4 (7th Cir. Apr. 6, 1995) (table) (finding that a plaintiff who

objected to sleeping on a mattress on a floor failed to state a constitutional claim).

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Finally, Plaintiff contends that the Court must consider the prison conditions in

combination to determine whether Defendants have violated his Eighth Amendment rights. It is

true that “[s]ome conditions of confinement may establish an Eighth Amendment violation ‘in

combination’ when each would not do so alone, but only when they have a mutually enforcing

effect that produces the deprivation of a single, identifiable human need such as food, warmth, or

exercise . . . .” Wilson v. Seiter, 501 U.S. 294, 304 (1991). Nevertheless, “[n]othing so

amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no

specific deprivation of a single human need exists.” Id. at 305.

2. Application

The undersigned finds that Plaintiff, at least with regard to the moving Defendants, has

failed to state sufficient facts to plead a facially plausible claim with respect to his allegations

related to his non-medical conditions of confinement. To the extent Plaintiff maintains that the

Defendants actions of triple celling him and forcing him to sleep on a mattress resting upon the

floor violated his constitutional rights, apart from the alleged medical indifference he later

experienced, the Court disagrees. 

Neither of the conditions Plaintiff emphasizes generally amount to an Eighth Amendment

violation, alone or in combination, without further indication of deprivation. Within his

Complaint, Plaintiff cites that the cell he was placed in was designed for double celling and that

the relevant cell does not meet the minimum standards set forth by the ACA. (Compl. ¶¶ 5–6,

ECF No. 3.) The Supreme Court in Rhodes, however, found similar types of factors insufficient

as grounds for an overcrowding claim under the Eighth Amendment. See 452 U.S. at 348. 

Although this case does involve triple celling, as opposed to double celling, Plaintiff still fails to

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allege that overcrowding has led to a deprivation of other basic needs.5

 Furthermore, Plaintiff

admits that the conditions he complains of lasted only for a temporary ten day period. (Compl.

¶¶ 2–3, ECF No. 3.) Although the combination of triple celling and being forced to sleep on a

mattress on the floor may, under certain circumstances, lead to the deprivation of a identifiable

human need, the facts Plaintiff has pled do not indicate that has happened in this case. Cf.

Hubbard v. Taylor, 538 F.3d 229, 234–36 (3rd Cir. 2008) (holding that although pretrial

detainees were triple celled and forced to sleep on a mattress on the floor for a period of three to

seven months, these conditions did not amount “to genuine privations and hardship over an

extended period of time for purposes of their due process claim”). Plaintiff, therefore, has failed

to demonstrate that the deprivations alleged were objectively, sufficiently serious to warrant

relief. 

Plaintiff also fails to demonstrate with sufficient factual detail that Defendants’ state of

mind was one of deliberate indifference. The Court acknowledges that Plaintiff has alleged that

he suffered at least some harm resulting from being forced to sleep on a floor mattress. In

particular, Plaintiff maintains that as a result of sleeping on a floor mattress he developed

arthritis in his lower back and developed back spasms which lasted four days. (Compl. ¶ 3, ECF

No. 3.) Even assuming that, because of this harm, Plaintiff’s non-medical claims meet the

objective component of a conditions of confinement claim, he still fails to provide sufficient

factual detail with regards to the subjective component. Specifically, Plaintiff does not plead

5

 Plaintiff alleges that at least one prison official ignored his request for medical care. 

Plaintiff, however, does not provide any facts indicating that the alleged failure to provide

medical care was a result of overcrowding. Rather, it appears that this alleged indifference was

the result of a prison official refusing to relay Plaintiff’s complaints of back pain. Regardless,

the Court will address Plaintiff’s allegations of deliberate indifference to his medical needs

below.

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sufficient facts to indicate that the moving Defendants were in any way aware that the practice of

forcing him to sleep on a mattress on the floor caused him to suffer back pain. Rather, Plaintiff

makes only the brief and conclusory assertion that Defendants intentionally caused him to be

subjected to inhumane treatment. See Iqbal, 129 S.Ct. at 1954 (indicating that while a plaintiff

was not required to plead a person’s state of mind with particularity, the standards of Rule 8 still

apply); see also Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009)

(requiring that “pleadings allege sufficient underlying facts from which a court may reasonably

infer that a party acted with the requisite state of mind”). Accordingly, Plaintiff has failed to

plead sufficient facts for the Court to reasonably infer that the moving Defendants’ state of mind

was one of deliberate indifference towards him. 

2. Medical Indifference Claim

a. Applicable Law

Plaintiff also alleges facts that raise an issue as to whether these Defendants were

deliberately indifferent to his serious medical needs. The Eighth Amendment prohibits prison

employees from inflicting pain “on an inmate by acting with ‘deliberate indifference’ toward

[his] serious medical needs.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010)

(quoting Blackmore v. Kalamazoo Cnty, 390 F.3d 890, 895 (6th Cir. 2004) (internal quotations

omitted)). A claim for deliberate indifference to a serious medical need contains both objective

and subjective elements. Id. “The objective component requires the existence of a ‘sufficiently

serious’ medical need.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “The

subjective element requires ‘an inmate to show that prison officials have a sufficiently culpable

state of mind in denying medical care.’ ” Id. (quoting Blackmore, 390 F.3d at 895 (internal

quotations omitted)). 

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b. Application

In this case, Plaintiff contends that he developed arthritis which resulted in back pain and

back spasms. (Compl. ¶ 3, ECF No. 3.) He further maintains that he made two requests to a

corrections officer in his housing unit to see a nurse with regards to his back problems. (Id. at

¶ 4.) Plaintiff asserts that the corrections officer refused his request on both occasions. (Id.)

Although the above facts may state a cognizable claim for medical indifference, Plaintiff

has failed to plead sufficient facts to state a claim against the moving Defendants in their

individual capacities. As the United States Court of Appeals for the Sixth Circuit has noted,

“[a]llegations of respondeat superior do not sustain a § 1983 claim against state employees in

their individual capacities, meaning that officials are personally liable for damages under that

statute ‘only for their own unconstitutional behavior.’ ” Colvin v. Caruso, 605 F.3d 282, 291

(6th Cir. 2010) (quoting Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989)). 

Accordingly, a plaintiff must show that the individual defendant “ ‘at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.’ ”

Id. (quoting Cardinal v. Metrish, 564 F.3d 794, 803 (6th Cir. 2009)). Here, Plaintiff has failed to

plead any facts suggesting that any of the moving Defendants were involved in any way with the

alleged refusal of medical care. Accordingly, Plaintiff has failed to state an individual capacity

claim against the moving Defendants on these grounds.

B. Official Capacity Claims

1. Applicable Law

In addition to monetary damages, Plaintiff also seeks a declaration that Defendants have

violated his Eighth Amendment rights as well as an injunction preventing Defendants from triple

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celling him and requiring him to sleep on a mattress on the floor in the future.6

 The Eleventh

Amendment generally bars § 1983 suits against a state official in his or her official capacity.7

Cady v. Arenac Cnty., 574 F.3d 334, 342 (6th Cir. 2009). Nevertheless, “[o]ne exception applies

when a state official is sued in his official capacity for purely injunctive relief.” League of

Women Voters of Ohio v. Brunner, 548 F.3d 463, 474 (6th Cir. 2008) (citing Ex parte Young,

209 U.S. 123, 155-56 (1908)). This exception is known generally as the Ex Parte Young

doctrine.

In deciding whether the Ex parte Young doctrine applies, the Court performs a

straightforward inquiry “consider[ing] ‘whether [the] complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.’ ” Id. (quoting Verizon Md.,

Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). The United States Court of

Appeals for the Sixth Circuit has emphasized that a plaintiff must allege an ongoing violation of

federal law to satisfy this inquiry. Creusere v. Weaver, No. 07-5859, 2009 WL 170667, at *4

(6th Cir. Jan. 26, 2009) (holding that a plaintiff did not satisfy the requirements of Ex parte

Young “because he has failed to allege an ongoing violation of federal law.”); see also Papasan

v. Allain, 478 U.S. 265, 277–78 (1986) (“Young has been focused on cases in which a violation

6

 Plaintiff actually requests the injunction on behalf of all inmates. Nevertheless,

because Plaintiff does not have standing to raise a claim on behalf of all LOCI inmates, the

undersigned will interpret his Complaint as requesting injunctive relief for himself. See Dodson

v. Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008) (holding that absent a request for

certification of a class action the prisoner plaintiff lacked “standing to seek injunctive relief on

behalf of all ODRC inmates”).

7

 Although the moving Defendants have not actually raised the question of whether

Eleventh Amendment immunity applies, the United States Court of Appeals for the Sixth Circuit

has held that federal courts have authority to consider sua sponte whether the Eleventh

Amendment bars suit because the question concerns the court’s jurisdiction. Cady v. Arenac

Cnty., 574 F.3d 334, 344-45 (6th Cir. 2009).

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of federal law by a state official is ongoing as opposed to cases in which federal law has been

violated at one time or over a period of time in the past . . . .”); Oleynikova v. Beye, No.

09-cv-01019, 2010 WL 5464151, at *7 (D. Colo. Dec. 29, 2010) (“[W]here a plaintiff seeks

prospective injunctive relief against a state official in her official capacity under the Ex parte

Young doctrine, the court can only redress ongoing violations, not past wrongs.”). In applying

this test, “[t]he focus of the inquiry remains on the allegations only; it ‘does not include an

analysis of the merits of the claim.’ ” Brunner, 548 F.3d at 474. (citation omitted).

2. Application

In this case, Plaintiff has failed to allege an ongoing violation of federal law. His lawsuit,

therefore, does not fall under the Ex parte Young exception to Eleventh Amendment immunity. 

Plaintiff is ultimately seeking relief for prison officials’ past actions. Although Plaintiff does

request injunctive relief, he does not maintain that Defendants are continuing to subject him to

the treatment that he contends violated his rights. Rather, Plaintiff states that the actions he

complains of, the combination of being triple celled and forced to sleep on a mattress on the

floor, occurred over a ten day period from October 22, 2010 until November 1, 2010.8

 (Compl.

8

 Plaintiff alleges that LOCI is still requiring other inmates to sleep on mattresses on the

floor. (See Compl. ¶ 9, ECF No. 3.) As noted above, however, to the extent this allegation can

be read as an attempt to assert an ongoing violation of federal law, Plaintiff does not have

standing to enforce the rights of other inmates. Dodson, 304 F. App’x at 438. 

Furthermore, although the undersigned recognizes that “the inquiry into whether suit lies

under Ex parte Young does not include an analysis of the merits of the claim,” Verizon, 535 U.S.

at 646, the Supreme Court also indicated in Verizon that a claim which is insubstantial and

frivolous will not be sufficient for jurisdictional purposes. Id. at 643. At least one Court of

Appeals has interpreted Verizon to mean that allegations that are insubstantial or frivolous will

not satisfy the “ongoing violation” prong of the Ex parte Young inquiry. In re Deposit Ins.

Agency, 482 F.3d 612, 618, 621 (2nd Cir. 2007) (stating, for the purposes of Ex parte Young’s

ongoing violation requirement, “[o]ur inquiry concerning such allegations is limited to whether

the alleged violation is a substantial, and not frivolous, one; we need not reach the legal merits of

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¶¶ 2–3, ECF No. 3.) Furthermore, Plaintiff does not indicate that there has been ongoing

indifference to his medical needs. Instead, Plaintiff’s Complaint suggests that the alleged

indifference to his medical needs occurred only on two occasions. (Id. at ¶ 4.) Accordingly,

Plaintiff cannot proceed with his claim for injunctive relief against the moving Defendants under

the Ex Parte Young exception. Therefore, to the extent Plaintiff asserts claims against the

moving Defendants in their official capacities, Defendants have immunity from such claims

under the Eleventh Amendment.

IV. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that the Court GRANT the Motion

of Defendants Curtis Wingard, Stanley Taylor, and Mike Mickle to Dismiss (ECF No. 10) and

DISMISS Defendants Curtis Wingard, Stanley Taylor, and Mike Mickle from this action.

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

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). 

the claim”); see also Creusere, 2009 WL 170667, at *4 (noting, in holding that a plaintiff failed

to allege an ongoing violation of federal law, that the issues raised in the plaintiff’s claim for

injunctive relief did not implicate federal law or a constitutional interest). Here, in addition to

Plaintiff’s lack of standing, federal case law following Rhodes, as outlined in Section III.A.1

above, establishes that a prisoner being forced to sleep on a mattress on the floor, without further

deprivation or additional circumstances, does not in and of itself violate federal law. For these

reasons, the undersigned finds that Plaintiff’s assertion that some inmates are still being forced to

sleep on the floor, without further detail, does not rise to the level of a constitutional violation

and, therefore, fails to satisfy the “ongoing violation” prong of the Ex parte Young inquiry.

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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: June 28, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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