IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Benjamin Hendricks, :

 Plaintiff, : Case No. 2:11-cv-399

 v. : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

Ms. Wessell, et al., :

 Defendants. :

REPORT AND RECOMMENDATION

This matter is before the Court to consider the motion to

dismiss filed by defendants Jeffrey Norman Hazzard, Ms. Wessell,

Ms. Crockett-Harris, and Mary Lawrence. The motion has been

fully briefed. For the following reasons, it will be recommended

that the motion to dismiss be granted in part and denied in part.

I. Background

Plaintiff Benjamin Hendricks filed his original complaint in

this action on June 9, 2011, asserting a claim under 42 U.S.C.

§1983 for violations of his First and Eighth Amendment rights

arising from an alleged retaliatory destruction of his legal

materials and alleged use of excessive force. The original

complaint named as defendants Jeffrey Norman Hazzard, Ms.

Wessell, Lt. John Doe, Ms. Harris, Mary Lawrence, and John/Jane

Doe x25, all in their individual capacities. Defendants filed a

motion to dismiss. On December 5, 2011, the Court issued a

Report and Recommendation which recommended that the motion to

dismiss be granted in part and denied in part. The Report and

Recommendation was affirmed by order dated March 29, 2012. 

Accordingly, the motion to dismiss was granted to the extent that

the claims against defendants Wessell, Lt. Doe, Harris and

Lawrence were dismissed. The state law claims against defendant

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Hazzard also were dismissed.

Following the issuance of the Report and Recommendation, but

prior to its adoption, Mr. Hendricks sought leave to amend his

complaint to pursue this action as a class action, to add

allegations regarding a separate incident involving an additional

plaintiff and an additional defendant, to add Ernie Moore, Gary

Mohr, and Rodger Roddy as defendants in their individual and

official capacities, and to sue all defendants in their official

and individual capacities for damages and injunctive relief. By

order dated February 7, 2012, the Court granted in part and

denied in part Mr. Hendricks’ motion for leave to file an amended

complaint. In the order, the Court stated that the motion was

granted to the extent that Mr. Hendricks was seeking to sue any

defendants in their official capacities, was seeking injunctive

relief, or seeking to add relevant allegations involving the

alleged incident between Mr. Ingram and Mr. Hill. The Court

ordered Mr. Hendricks to file an amended complaint that conformed

to the order. 

 On April 19, 2012, Mr. Hendricks filed the amended complaint

naming as defendants Mr. Hazzard, Ms. Lawrence, Ms. CrockettHarris, Ms. Wessell, Mr. Moore, Mr. Mohr, and Mr. Roddy. Mr.

Hazzard is named as a defendant in both his individual and

official capacities but all other defendants are named in their

official capacities only. This amended complaint is the subject

of the current motion to dismiss filed by Mr. Hazzard, Ms.

Lawrence, Ms. Crockett-Harris, and Ms. Wessell. 

II. The Motion to Dismiss 

In the motion to dismiss, the defendants argue that, to the

extent Mr. Hendricks’ complaint can be construed as seeking

monetary damages against them in their official capacities, his

claims are barred by the Eleventh Amendment. On the other hand,

they contend that, to the extent that any claim for injunctive

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relief may be viable under the Ex Parte Young exception, Mr.

Hendricks fails to allege an ongoing violation of federal law. 

In response, Mr. Hendricks does not dispute that any claim

for monetary damages against these defendants is barred by the

Eleventh Amendment. Rather, the focus of Mr. Hendricks’ response

is that he is seeking prospective relief to address an alleged

policy, custom or practice engaged in by the defendants resulting

in a tolerance of abuse inflicted by Mr. Hazzard and others and

that this policy, custom or practice can be demonstrated only

through examples of past conduct. In support of his position,

Mr. Hendricks relies on two Sixth Circuit cases, Leach v. Shelby

County Sheriff, 891 F.2d 1241 (6th Cir. 1989) and Marchese v.

Lucas, 758 F.2d 181 (6th Cir. 1985). According to Mr. Hendricks’

reading of these cases, the defendants can be held liable for

their failure to investigate or discipline an officer’s conduct

when such failure equates to a ratification of that conduct.

 In reply, the moving defendants contend that Mr. Hendricks

is attempting to “treat [his] official capacity claim as an

individual capacity claim.” Further, they claim that the cases

relied on by Mr. Hendricks are distinguishable because they

involved claims against county defendants and do not apply to

claims brought against state defendants in an official capacity. 

Finally, they reiterate that the only way Mr. Hendricks can

pursue any claim for injunctive relief against them in their

official capacities is if he alleges an ongoing violation of

federal law. Defendants contend, however, that Mr. Hendricks has

not done that here because he has alleged only isolated incidents

separated by several months. 

III. Legal Standard

 A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not

be granted if the complaint contains “enough facts to state a

claim to relief that is plausible on its face." Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 569 (2007). All well-pleaded

factual allegations must be taken as true and be construed most

favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,

236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.

2009). Rule 8(a) admonishes the Court to look only for a “short

and plain statement of the claim,” however, rather than requiring

the pleading of specific facts. Erickson v. Pardus, 551 U.S. 89

(2007). 

A 12(b)(6) motion to dismiss is directed solely to the

complaint and any exhibits attached to it. Roth Steel Products v.

Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The

merits of the claims set forth in the complaint are not at issue

on a motion to dismiss for failure to state a claim. 

Consequently, a complaint will be dismissed pursuant to Fed. R.

Civ. P. 12(b)(6) only if there is no law to support the claims

made, or if the facts alleged are insufficient to state a claim,

or if on the face of the complaint there is an insurmountable bar

to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,

702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction

with Fed. R. Civ. P. 8(a) which provides that a pleading for

relief shall contain "a short and plain statement of the claim

showing that the pleader is entitled to relief." 5A Wright &

Miller, Federal Practice and Procedure § 1356 (1990). The moving

party is entitled to relief only when the complaint fails to meet

this liberal standard. Id.

On the other hand, more than bare assertions of legal

conclusions is required to satisfy the notice pleading standard. 

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th

Cir. 1988). "In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements

to sustain a recovery under some viable legal theory." Id.

(emphasis in original, quotes omitted).

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"[w]e are not holding the pleader to an impossibly high

standard; we recognize the policies behind rule 8 and

the concept of notice pleading. A plaintiff will not

be thrown out of court for failing to plead facts in

support of every arcane element of his claim. But when

a complaint omits facts that, if they existed, would

clearly dominate the case, it seems fair to assume that

those facts do not exist."

Id. It is with these standards in mind that the motion to dismiss

will be decided.

IV. Analysis

In his amended complaint, Mr. Hendricks has stated precisely

that he is suing Ms. Lawrence, Ms. Crockett-Harris, and Ms.

Wessell in their official capacities. This is consistent with

the instructions in the Court’s previous order and is in direct

contrast to allegations in Mr. Hendricks’ previous complaints

where he stated that these defendants were being sued in both

their individual and official capacities. See Doc. #26-1 and

Doc. #47. The Court does not construe Mr. Hendricks’ amended

complaint as asserting a claim for personal liability against any

defendants other than Mr. Hazzard despite the defendants’

somewhat lengthy argument to the contrary in their reply. 

This is so even though, as defendants note in their motion,

in his allegations of damages and prayer for relief, Mr.

Hendricks appears to seek monetary damages from all defendants. 

However, to the extent this language, as defendants suggest, may

be construed as a claim for damages against these defendants in

their official capacities, such a claim clearly is barred by the

Eleventh Amendment. Will v. Mich. Dep’t. of State Police, 491

U.S. 58, 71 (1989). Consequently, the motion to dismiss will be

granted to the extent that it is directed to any claims for

monetary damages against these defendants in their official

capacities.

On the other hand, while the Eleventh Amendment generally

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bars suits by citizens of a state against a state in federal

court, there are exceptions to this rule, including an official

capacity suit seeking purely injunctive relief against a state

official. Ex parte Young, 209 U.S. 123, 155-56 (1908); League of

Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008). 

As the Sixth Circuit explained in Brunner, 

The test for determining whether the Ex parte

Young exception applies is a “straightforward” one.

Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535

U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).

The court considers “whether [the] complaint alleges an

ongoing violation of federal law and seeks relief

properly characterized as prospective.” Id. (alteration

in original) (citation omitted); Dubuc v. Mich. Bd. of

Law Exam'rs, 342 F.3d 610, 616 (6th Cir. 2003). The

focus of the inquiry remains on the allegations only;

it “does not include an analysis of the merits of the

claim.” Verizon, 535 U.S. at 646, 122 S.Ct. 1753;

Dubuc, 342 F.3d at 616.

Id. at 474. 

Defendants contend that Mr. Hendricks does not describe an

ongoing violation of federal law in his amended complaint. 

Defendants read the amended complaint as alleging in only minimal

detail “three or four separate use of force incidents,” all of

which took place in the past. In response, Mr. Hendricks asserts

that his complaint alleges a continuing policy of deliberate

indifference that he can demonstrate only through a discussion of

events that have occurred previously. As the Court reads the

amended complaint, Mr. Hendricks has attempted to allege a course

of conduct beyond a few unrelated incidents. 

While the factual allegations regarding an ongoing violation

of federal law are not highly detailed, construing the amended

complaint broadly as the Court is required to do, Mr. Hendricks

does allege an ongoing “problem with the recruitment, training,

supervision, and discipline of employees at Pickaway Correctional

Insitution” and that, absent some Court intervention in the form

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of declaratory relief, the defendants will continue to violate

inmates’ constitutional rights or to intimidate inmates into

foregoing their constitutional rights. See Amended Complaint

(Doc. #47) at ¶¶55 and 77. In addition to these allegations, Mr.

Hendricks specifically requests injunctive relief in the form of

a restriction on Mr. Hazzard’s time in the Frazier Health Center,

anger management training for corrections staff with more than

two misuse of force complaints, an investigation of all use of

force complaints within the last three years to determine the

appropriateness of the force used, background checks of all

Pickaway staff, and the issuance of medical cards to inmates

summarizing any medical restrictions. 

Mr. Hendricks’ claims for relief fairly can be characterized

as seeking “relief that would ‘merely compel the state officer’s

compliance with federal law in the future’” and as a result are

prospective in nature. Perez v. Wade, 652 F.Supp.2d 901, 906-07

(W.D. Tenn. 2009)(citation omitted)(plaintiff’s request for,

among other relief, a requirement that defendants undergo

training regarding discrimination against Hispanics, an order

compelling defendants to provide a written apology, and a

directive that defendants refrain from targeting Hispanics found

to be prospective in nature); see also Nelson v. Miller, 170 F.3d

641, 646 (6th Cir. 1999); Doe v. Wigginton, 21 F.3d 733, 737 (6th

Cir. 1994). Consequently, Mr. Hendricks’ claims for injunctive

and declaratory relief fall within the Ex parte Young exception

and therefore are not barred by the Eleventh Amendment. 

V. Conclusion 

For the reasons stated above, it is recommended that the

motion to dismiss (#48) be granted as to any claim for damages

against the defendants in their official capacities. Further, it

is recommended that the motion to dismiss be denied as to any

claim for declaratory or injunctive relief against the defendants

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in their official capacities. 

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

 

 

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