IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHANE BAKER, 

 

 Plaintiff, 

 

 vs. Case No. 2:13-cv-0034 

 Judge Smith 

 Magistrate Judge King 

JOEL E. KAYE, M.D., et al., 

 

 Defendants. 

REPORT AND RECOMMENDATION 

 This matter is before the Court for consideration of Defendants’ 

Motion to Dismiss, Doc. No. 14, asking that this action be dismissed 

pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil 

Procedure. Plaintiff opposes the motion, Motion in Opposition to 

Motion to Dismiss (“Plaintiff’s Response”), Doc. No. 15, and 

defendants have filed a reply, Doc. No. 16. For the reasons that 

follow, it is RECOMMENDED that Defendants’ Motion to Dismiss be 

GRANTED in part and DENIED in part. 

I. Background 

 Plaintiff Shane Baker, formerly incarcerated at the Pickaway 

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

under 42 U.S.C. § 1983 against various employees of PCI and the Ohio 

Department of Rehabilitation and Correction (“ODRC”). Amended 

Complaint, Doc. No. 11, ¶¶ 1-3. The Amended Complaint also alleges 

state law claims for medical negligence and violations of O.A.C. § 

5120:1-8-19, O.A.C. § 5120:1-8-09, and O.R.C. § 5120.01. The Amended 

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Complaint alleges that, on February 23 or 24, 2011, while plaintiff 

was incarcerated at PCI, he fell and broke his hand. Amended 

Complaint, ¶¶ 9-10. “Immediately after the fall,” plaintiff “was sent 

to medical” where a “nurse” “x-rayed his hand, detected several 

breaks,” “wrapped his hand in an ace bandage, and told him [that] he 

would be referred to a specialist.” Id. at ¶¶ 11-13. A splint was 

also used. Id. at ¶ 34. Plaintiff was later “told by the doctor that 

he was denied treatment with a hand specialist.” Id. at ¶ 14. As a 

direct result, plaintiff alleges, his hand became deformed, he 

experienced significant pain for ten months, and corrective surgery 

was required after his release from PCI to repair the deformity. Id. 

at ¶ 24. 

II. Discussion 

A. Fed. R. Civ. P. 12(b)(5) 

Defendants’ Motion to Dismiss seeks dismissal of the claims 

against defendants Joel E. Kaye, M.D., Charles H. Muncrief, D.O., and 

S. Douglas Haas, M.D., pursuant to Fed. R. Civ. P. 12(b)(5) for 

insufficient service of process. Defendants’ Motion to Dismiss, pp. 

4-5. Rule 4(m) of the Federal Rules of Civil Procedure requires 

service of the summons and complaint on a defendant within 120 days of 

the filing of the complaint. Fed. R. Civ. P. 4(m). If such service 

is not made, the Court “must dismiss the action without prejudice 

against [the] defendant or order that service be made within a 

specified time. But if the plaintiff shows good cause for the 

failure, the court must extend the time for service for an appropriate 

period.” Id. 

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 It does not appear that defendants Dr. Kaye, Dr. Muncrief, or Dr. 

Haas have been served with process, and plaintiff – who is represented 

by counsel - “has no objection to the dismissal of Defendants Kaye, 

Muncrief, or Hass.” Plaintiff’s Response, p. 1. Accordingly, it is 

RECOMMENDED that the claims asserted against defendants Joel E. Kaye, 

M.D., Charles H. Muncrief, D.O., and S. Douglas Haas, M.D., be 

DISMISSED without prejudice. 

 B. Fed. R. Civ. P. 12(b)(6) 

 Defendants John Gardner, Mary Roush, Mary Lawrence, and Dr. 

Andrew Eddy ask that plaintiff’s remaining claims be dismissed 

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon 

which relief can be granted. 

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 

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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. 

 Plaintiff’s remaining federal claims are asserted against John 

Gardner, Mary Roush, Mary Lawrence, and Dr. Eddy in their individual 

capacities. Amended Complaint, ¶¶ 25-32; Plaintiff’s Response, pp. 1, 

7 (representing that all of plaintiff’s claims are against defendants 

in their individual capacities). John Gardner is identified as the 

Chief Medical Officer of the ODRC; Mary Roush is identified only as 

an employee of PCI; Mary Lawrence is identified as the Institutional 

Inspector at PCI; and Dr. Eddy is identified as a member of the 

Collegial Review Board of the ODRC. Amended Complaint. Plaintiff’s 

federal claims are asserted under § 1983, which provides in relevant 

part: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or 

the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other person 

within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C. § 1983. A prima facie case under § 1983 requires evidence 

of (1) conduct by an individual acting under color of state law that 

causes (2) the deprivation of a right secured by the Constitution or 

laws of the United States. Day v. Wayne Cnty. Bd. of Auditors, 749 

F.2d 1199, 1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 

527, 535 (1981)). Section 1983 merely provides a vehicle for 

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enforcing individual rights found elsewhere and does not itself 

establish any substantive rights. See Gonzaga Univ. v. Doe, 536 U.S. 

273, 285 (2002). Moreover, liability based on a theory of respondeat 

superior is not cognizable under § 1983. See Turner v. City of 

Taylor, 412 F.3d 629, 643 (6th Cir. 2005); Hays v. Jefferson Cnty., 

Ky., 668 F.2d 869, 874 (6th Cir. 1982). In order to be held liable 

under § 1983, a defendant with supervisory authority must have either 

“encouraged the specific incident of misconduct or in some other way 

directly participated in it.” Turner, 412 F.3d at 643. 

In the case presently before the Court, plaintiff alleges that 

“[d]efendants” acted with deliberate indifference to his medical needs 

in violation of the Eighth Amendment to the United States 

Constitution. Amended Complaint, ¶¶ 5, 25-32. The Eighth Amendment 

prohibits cruel and unusual punishment. To prevail on his claims 

against each defendant, plaintiff must prove that the defendant acted 

with “deliberate indifference to [his] serious medical needs.” 

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This standard includes 

both an objective and a subjective component. The objective component 

requires that a plaintiff establish a “sufficiently serious” medical 

need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The subjective 

component requires that a plaintiff “allege facts which, if true, 

would show that the official being sued subjectively perceived facts 

from which to infer substantial risk to the prisoner, that he did in 

fact draw the inference, and that he then disregarded that risk.” 

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 

511 U.S. at 837). Although officials may not deliberately disregard a 

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medical need, “[m]edical malpractice does not become a constitutional 

violation merely because the victim is a prisoner.” Estelle, 429 U.S. 

at 106. Deliberate indifference “describes a state of mind more 

blameworthy than negligence.” Farmer, 511 U.S. at 835. Nevertheless, 

“a plaintiff need not show that the official acted ‘for the very 

purpose of causing harm or with knowledge that harm will result.’” 

Comstock, 273 F.3d at 703 (quoting Farmer, 511 U.S. at 835). 

“Instead, ‘deliberate indifference to a substantial risk of serious 

harm to a prisoner is the equivalent of recklessly disregarding that 

risk.’” Id. (quoting Farmer, 511 U.S. at 836). Liability can result 

if a prison official “knows that inmates face a substantial risk of 

serious harm and disregards that risk by failing to take reasonable 

measures to abate it.” Farmer, 511 U.S. at 847. 

Defendants argue that the Amended Complaint does not allege facts 

sufficient to satisfy the subjective component of an Eighth Amendment 

deliberate indifference claim. Defendants’ Motion to Dismiss, p. 8. 

The Court agrees with that determination. 

The Amended Complaint alleges that defendants, “through their 

actions and acting under color of law, subjected the Plaintiff, and 

caused the Plaintiff to be subjected to, the deprivations of his 

rights, privileges, and immunities secured by the [Eighth Amendment to 

the] United States Constitution[.]” Amended Complaint, ¶¶ 27-28. The 

Amended Complaint further alleges that “[d]efendants were aware that 

[plaintiff] needed treatment for his broken hand, beyond the ace 

bandage that he was given, but ignored [plaintiff’s] objective 

symptoms, self-reporting, and constant requests for medical 

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attention.” Id. at ¶ 31. 

The Amended Complaint does not allege any facts whatsoever in 

support of a claim that defendants Mary Roush or PCI Institutional 

Inspector Mary Lawrence either encouraged or directly participated in 

the claimed denial of medical care. Indeed, the record does not even 

identify defendant Roush’s position at PCI, nor does it allege that 

either defendant Roush or defendant Lawrence could have provided 

medical care to plaintiff. Conclusory allegations that defendants 

violated plaintiff’s Eighth Amendment rights and were “aware” that 

plaintiff needed additional treatment, see id. at ¶¶ 27-28, 31, are 

simply insufficient to state an Eighth Amendment deliberate 

indifference claim. The Amended Complaint does allege that, while 

exhausting his administrative remedies, plaintiff “was refused access 

to grievances by Institutional Inspector Mary Lawrence.” Id. at ¶ 20. 

However, Plaintiff’s Response clarifies that plaintiff has “no 

claim . . . based upon access to a grievance system.” Plaintiff’s 

Response, p. 7. The Amended Complaint contains no other factual 

allegations against defendants Roush or Lawrence, and none whatsoever 

relating to any involvement on their part in plaintiff’s medical 

treatment. Accordingly, the Amended Complaint fails to state a 

colorable § 1983 claim against defendants Roush and Lawrence. 

As to defendants Gardner and Dr. Eddy, the Amended Complaint 

alleges that these defendants were “aware” that plaintiff’s injury 

required additional, specialized, medical treatment. Amended 

Complaint, ¶¶ 27-28, 31. The Amended Complaint also alleges that 

defendants Gardner and Dr. Eddy “were members of the collegial review 

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board and responsible for the denial of treatment by a hand 

specialist.” Id. at ¶ 15. These allegations are, in the view of this 

Court, sufficient to state a colorable § 1983 claim against defendants 

Gardner and Dr. Eddy. 

 The Amended Complaint also alleges state law claims for medical 

negligence and violations of O.A.C. § 5120:1-8-19, O.A.C. § 5120:1-8-

09, and O.R.C. § 5120.01 against defendants, who are “employees” of 

PCI. Amended Complaint, ¶¶ 2, 8, 32-38. As an initial matter, 

plaintiff agrees that the claims under O.A.C. § 5120:1-8-19 and O.R.C. 

§ 5120.01 should be dismissed. Plaintiff’s Response, p. 1. It is 

therefore RECOMMENDED that plaintiff’s claims for violations of O.A.C. 

§ 5120:1-8-19 and O.R.C. § 5120.01 be DISMISSED. 

 As to plaintiff’s claims under O.A.C. § 5120:1-8-09, the parties 

disagree whether § 5120:1-8-09 creates a private cause of action. 

Defendants’ Motion to Dismiss, p. 11; Plaintiff’s Response, pp. 6-7. 

Plaintiff argues that he “had an order from a jail physician for work 

with the hand clinic, but [that he] never received attention from the 

clinic.” Plaintiff’s Response, pp. 6-7. This alleged “failure to 

comply with treatment orders,” plaintiff argues, “shows an adequate 

violation” of O.A.C. § 5120:1-8-09(G). Id. at p. 6. 

Section 5120:1-8-09 of the Ohio Administrative Code does not 

explicitly create a private cause of action. The regulation applies to 

full service jails and provides, 

Medical care shall be performed by qualified health care 

personnel pursuant to written protocol or order of the jail 

physician. Verification of current credentials of each 

qualified health care personnel shall be maintained on 

file. 

 

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O.A.C. § 5120:1-8-09(G). “When determining whether, in the absence 

of explicit language, a statute grants a private right of action, Ohio 

courts have used the test set forth in” Cort v. Ash, 422 U.S. 66 

(1975); Grey v. Walgreen Co., 967 N.E.2d 1249, 1252 (Ohio Ct. App. 

2011) (citing Strack v. Westfield Cos., 515 N.E.2d 1005 (Ohio Ct. App. 

1986)): 

First, is the plaintiff “one of the class for whose 

especial benefit the statute was enacted,” — that is, does 

the statute create a federal right in favor of the 

plaintiff? Second, is there any indication of legislative 

intent, explicit or implicit, either to create such a 

remedy or to deny one? Third, is it consistent with the 

underlying purposes of the legislative scheme to imply such 

a remedy for the plaintiff? And finally, is the cause of 

action one traditionally relegated to state law, in an area 

basically the concern of the States, so that it would be 

inappropriate to infer a cause of action based solely on 

federal law? 

Cort, 422 U.S. at 78 (citations omitted). More recently, however, the 

Ohio Court of Appeals has focused solely on the second Cort factor; 

Grey, 967 N.E.2d at 1252-53 (“The United States Supreme Court has 

gradually focused on the single factor of whether there was a 

legislative intent to grant a private right of action”) (citing 

Alexander v. Sandoval, 532 U.S. 275 (2001)); Transamerica Mortg. 

Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11 (1979); Touche Ross & Co. 

v. Redington, 442 U.S. 560 (1979). 

“[T]he relevant inquiry for determining whether a private 

right of action exists appears to have two steps: (1) Did 

Congress intend to create a personal right? and (2) Did 

Congress intend to create a private remedy? Only if the 

answer to both of these questions is ‘yes’ may a court hold 

that an implied private right of action exists under a 

federal statute.”1

 

 

1

 The rule articulated by the Ohio Court of Appeals in Grey v. Walgreen Co., 

967 N.E.2d 1249, refers to the intent of Congress and the interpretation of a 

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Id. (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 301 (3rd Cir. 

2007)). See also Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 249 

(Ohio 1976) (refusing to “read [] a remedy into” O.R.C. § 4101.17 

where there was no “clear implication” that the legislature “intended 

to create a civil action for damages for the breach of [§] 4101.17”). 

 As noted supra, plaintiff alleges that defendants violated O.A.C. 

§ 5120:1-8-09(G). Amended Complaint, ¶¶ 36-39; Plaintiff’s Response, 

pp. 6-7. Nothing in that regulation suggests an intention to create a 

personal right or a private remedy. In fact, nothing in Chapter 

5120:1-8 of the Ohio Administrative Code, which governs full service 

jails, suggests an intention to create a private cause of action. 

Chapter 5120:1-8 was enacted under the authority of O.R.C. § 

5120.10(A)(1), which provides that the “director of rehabilitation and 

correction, by rule, shall promulgate minimum standards for jails in 

Ohio.” The Ohio Revised Code expressly provides that these “minimum 

standards,” which includes the provisions of O.A.C. Chapter 5120:1-8, 

“serve as criteria for the investigative and supervisory powers and 

duties vested . . . in the division of parole and community services 

of the department of rehabilitation and correction2

 or in another 

division of the department to which those powers and duties are 

assigned.” O.R.C. § 5120.10(A)(2). 

The express intention of the Ohio legislature, as reflected in 

 federal statute; however, that court applied the rule in its construction of 

an Ohio statute. See id. at 1252-54. 2

 The division of parole and community services is vested with, inter alia, 

the powers and duties of “investigation and supervision of county and 

municipal jails . . . and other correctional institutions and agencies.” 

O.R.C. § 5120.10(D)(1). 

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O.R.C. § 5120.10, does not contemplate a private cause of action for a 

violation of the provisions of O.A.C. Chapter 5120:1-8. Furthermore, 

plaintiff has not referred to, and the Court has not found, any Ohio 

authority even suggesting that O.A.C. § 5120:1-8-09 creates a private 

cause of action in a prison inmate. Under the circumstances, the 

Court cannot permit plaintiff’s claims premised on a violation of 

O.A.C. § 5120:1-8-09(G) to proceed; to hold otherwise would circumvent 

the express intent of the Ohio legislature. Accordingly, it is 

RECOMMENDED that plaintiff’s claims for violations of O.A.C. § 5120:1-

8-09 be DISMISSED. 

 Finally, plaintiff asserts state law claims for medical 

negligence against defendants Gardner and Dr. Eddy. Amended

Complaint, ¶¶ 32-35. The Amended Complaint alleges that these 

defendants owed to plaintiff a duty to keep him safe, to protect him 

from unnecessary harm, and to exercise reasonable and ordinary care 

for his life and health. Id. The Amended Complaint also alleges that 

defendants acted in breach of this duty by negligently failing to 

provide medical care for plaintiff’s hand and that, as a result, 

plaintiff suffered additional injuries. Id. These allegations are, 

in the view of this Court, sufficient to state a colorable negligence 

claim against defendants Gardner and Dr. Eddy. The Court notes, 

however, that the parties have not addressed the issue of immunity 

under state law, despite a reminder by this Court that Ohio law 

requires state law claims against state officials to first be brought 

before the Ohio Court of Claims for a determination of the issue of 

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immunity under state law.3 Order, Doc. No. 4, pp. 1-2 (citing Cameron 

v. Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1169-70 (6th Cir. 1997);

Underfer v. Univ. of Toledo, 36 F. App’x 831, 835 (6th Cir. 2002); 

O.R.C. § 2743.02(F)); see also Haynes v. Marshall, 887 F.2d 700, 705 

(6th Cir. 1989). The Court therefore concludes that dismissal of 

plaintiff’s state law medical negligence claims against defendants 

Gardner and Dr. Eddy is not appropriate at this juncture. 

WHEREFORE, based on the foregoing, it is RECOMMENDED that 

defendants’ Motion to Dismiss, Doc. No. 14, be GRANTED in part and 

DENIED in part. It is SPECIFICALLY RECOMMENDED that the claims 

against defendants Joel E. Kaye, M.D., Charles H. Muncrief, D.O., and 

S. Douglas Haas, M.D., be DISMISSED without prejudice for 

insufficiency of service of process, that all claims against 

defendants Mary Lawrence and Mary Roush be DISMISSED with prejudice

for failure to state a claim upon which relief can be granted, and 

 

3

 “A federal court exercising pendent jurisdiction sits as a court of the 

forum state and is bound to apply its substantive law.” Haynes, 887 F.2d at 

705 (citing Guaranty Trust Co. v. York, 326 U.S. 99, 108-09 (1945)). Ohio 

Revised Code § 9.86 confers civil immunity to state officers and employees: 

Except for civil actions that arise out of the operation of a 

motor vehicle and civil actions in which the state is the 

plaintiff, no officer or employee shall be liable in any civil 

action that arises under the law of this state for damage or 

injury caused in the performance of his duties, unless the 

officer’s or employee’s actions were manifestly outside the scope 

of his employment or official responsibilities, or unless the 

officer or employee acted with malicious purpose, in bad faith, 

or in a wanton or reckless manner. 

O.R.C. § 9.86. Ohio Revised Code § 2743.02(F) “requires that, as a condition 

precedent to asserting a cause of action against a state employee in his 

individual capacity, the Court of Claims must first determine that the 

employee is not entitled to the immunity provided for in Revised Code section 

9.86.” Haynes, 887 F.2d at 705. 

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that plaintiff’s state law claims against all defendants for violation 

of O.A.C. § 5120:1-8-19, O.A.C. § 5120:1-8-09, and O.R.C. § 5120.01 be 

DISMISSED with prejudice for failure to state a claim upon which 

relief can be granted. It is FURTHER RECOMMENDED that, as it relates 

to plaintiff’s federal claims under 42 U.S.C. § 1983 and state law 

claims of medical negligence against defendants John Gardner and Dr. 

Andrew Eddy, the Motion to Dismiss, Doc. No. 14, DENIED. 

 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 

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). 

July 23, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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