IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEFFERY A. JOHNSON, 

 Plaintiff, 

 vs. Case No. 2:13-cv-0025 

 Judge Watson 

Magistrate Judge King 

MUSKINGUM COUNTY SHERIFF’S 

DEPARTMENT, et al., 

 Defendants. 

ORDER AND 

REPORT AND RECOMMENDATION

 Plaintiff Jeffrey A. Johnson, an inmate currently incarcerated at 

the Noble Correctional Institution, brings this action against the 

Muskingum County Sheriff’s Department, Sheriff Matthew Lutz, several 

Sheriff’s deputies, the “Sheriff’s Department Food Personal” [sic], 

Nurse Shane Love (“Nurse Love”), Dr. Anthony Khoury (“Dr. Khoury”), 

and Aramark Correctional Services, LLC (“Aramark”), under 42 U.S.C. § 

1983, alleging civil rights violations “under the Fifth, Eighth, and 

Fourteenth Amendment[s]” to the United States Constitution for 

“refusing [plaintiff] medical care.” Amended Complaint, Doc. No. 32, 

p. 5. The Amended Complaint also asserts a supplemental state law 

claim against defendants Nurse Love and Dr. Khoury (collectively, “the 

Medical Defendants”) for “negligently failing to give [plaintiff] 

proper medical treatment.” Id. 

This matter is before the Court for consideration of a number of 

motions. The Medical Defendants move to dismiss the claims against 

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them for failure to state a claim upon which relief can be granted. 

Defendants Shane Love, L.P.N. and Anthony Khoury, D.O.’s Motion to 

Dismiss the Amended Complaint (“Motion to Dismiss”), Doc. No. 39. 

Plaintiff opposes the Motion to Dismiss. Opposition to Defendants 

Shane Love & Anthony Khoury Civil Rule 12(b)(6) Motion to Dismiss 

Plaintiff’s Complaint (“Plaintiff’s Response to Motion to Dismiss”), 

Doc. No. 43. The Medical Defendants have not filed a reply. 

On May 2, 2013, Aramark filed a motion for judgment on the 

pleadings pursuant to Fed. R. Civ. P. 12(c), Aramark’s Motion for 

Judgment on the Pleadings (“Aramark’s Motion”). Doc. No. 25. 

Plaintiff filed a response to Aramark’s Motion. Plaintiff, Jeffery A. 

Johnson Oppisition [sic] to Defendant “Aramark” Motion for Judgment on 

Pleadings (“Plaintiff’s Response to Aramark’s Motion”), Doc. No. 28. 

Aramark filed a reply. Aramark’s Reply Brief in Support of its Motion 

for Judgment on the Pleadings, Doc. No. 29. On June 4, 2013, the 

Amended Complaint was filed, thereby rendering moot Aramarks’ Motion. 

See Order, Doc. No. 31; Order, Doc. No. 42. 

On June 5, 2013, Aramark renewed its motion for judgment on the 

pleadings. Motion by Aramark Correctional Services, LLC [] to Renew 

its Motion for Judgment on the Pleadings, Doc. No. 25 (“Aramark’s 

Renewed Motion”), Doc. No. 34. On July 25, 2013, the Court noted that 

plaintiff had not responded to Aramark’s Renewed Motion and directed 

plaintiff to file a response, if any, within twenty-one (21) days. 

Order, Doc. No. 42. Plaintiff has not filed a response to Aramark’s 

Renewed Motion. Accordingly, consistent with the Court’s July 25, 

2013 Order, the Court will “assume that plaintiff intends to rely on 

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his response to the earlier motion for judgment on the pleadings.” 

Id. Aramark’s Renewed Motion is now ripe for consideration. 

Also before the Court is Aramark’s Motion to Strike Exhibits 

attached to Plaintiff’s Brief in Opposition to Aramark’s Motion for 

Judgment on the Pleadings pursuant to Civil Rule 12(c), Doc. No. 30 

(“Motion to Strike”). Aramark contends that exhibits attached to 

Plaintiff’s Response to Aramark’s Motion, which appear to be documents 

downloaded from the internet, are not properly before the Court in its 

consideration of Aramark’s Renewed Motion. Plaintiff has not responded 

to the Motion to Strike. See S.D. Ohio Civ. R. 7.2(a)(2). In any 

event, the Court agrees that consideration of the exhibits is not 

necessary to the resolution of Aramark’s Renewed Motion. The Motion 

to Strike is therefore GRANTED. The CLERK is DIRECTED to STRIKE pages 

two through 9 of Plaintiff’s Response to Aramark’s Motion, Doc. No. 

28. 

For the reasons that follow, it is RECOMMENDED that the Medical 

Defendants’ Motion to Dismiss, Doc. No. 39, be GRANTED in part. It is 

FURTHER RECOMMENDED that Aramark’s Renewed Motion, Doc. No. 34, be 

GRANTED in its entirety. 

I. Background 

The Amended Complaint alleges that, while he was detained in the 

Muskingum County Jail on March 9, 2012, plaintiff choked on an “Apple 

Crisp” while eating lunch and, as a consequence, plaintiff stumbled, 

“ran his head into the bar’s [sic] that hold the inmates confined,” 

and was knocked unconscious. Amended Complaint, pp. 5-6. After 

regaining consciousness, plaintiff vomited and found an “Apple Stem 

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from the ‘Apple Crisp’ inwhich [sic] caused the injury.” Id. at p. 6. 

The stem was put “inside a bag for evidence.” Id. 

The Amended Complaint alleges that plaintiff 

was in a great deal of pain and as such, requested medical 

treatment, however, no treatment was ever provided by the 

Muskingum County Sheriff’s Department or Nurse Shane Love 

or the jails [sic] physician, Doctor Antony [sic] Khoury. 

 

Id. at p. 6. “From March 9th till [sic] June 15[], 2012, Plaintiff 

requested medical treatment and was denied such.” Id.1

 

The Amended Complaint alleges that the Medical Defendants are 

“emplyed [sic] by Premier Health Care Services who are contracted to 

the Muskingum County Jail to take care of the medical needs of 

inmates.” Amended Complaint, p. 5. Aramark is allegedly “under 

contract with the Muskingum County Jail to provide meals to the 

inmates at the county jail.” Id. 

II. Standard of Review

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, an amended complaint must be 

construed in the light most favorable to the plaintiff, and all wellpleaded 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 

																																																								 1 In his response to the Motion to Dismiss, plaintiff states that Nurse 

Love “examined Plaintiff right after the incident” and “stated he was going 

to refer Plaintiff to see [Dr. Khoury], however, Plaintiff never saw a 

physician.” Plaintiff’s Response to Motion to Dismiss, p. 7. Plaintiff 

contends that he “complained of sourness [sic] to the throat and bleeding for 

3 months and did not see the jail physician.” Id. 

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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, an amended 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. 

 A motion for judgment on the pleadings filed pursuant to Rule 

12(c) is evaluated by reference to the same standard as is a motion to 

dismiss under Rule 12(b)(6). See Roth v. Guzman, 650 F.3d 603, 605 

(6th Cir. 2011). 

III. Discussion

A. Motion to Dismiss

The Medical Defendants move to dismiss plaintiff’s federal and 

state law claims against them for failure to state a claim upon which 

relief can be granted. 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 . . . . 

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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 

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 

the Medical Defendants and Aramark denied plaintiff medical treatment 

in violation of the Eighth Amendment to the United States 

Constitution. See Amended Complaint, pp. 5-6.2

 The Eighth Amendment 

																																																								

2	Plaintiff may have been a pretrial detainee during some or all of the 

relevant time. A claim of deliberate indifference to the serious medical 

needs of a pretrial detainee arises under the Due Process Clause of the 

Fourteenth Amendment. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 

(1983). However, the standard governing such claims is the same as that 

arising under the Eighth Amendment. Border v. Trumbull County Bd. of Com’rs, 

414 Fed.Appx. 831, 835 (6th Cir. 2011)(“It is well-established that the Eighth 

Amendment’s prohibition of cruel and unusual punishment provides the basis to 

assert a claim, under 42 U.S.C. § 1983, of deliberate indifference to a 

prisoner’s serious medical needs; a similar claim brought on behalf of a 

pretrial detainee is equally viable under the Due Process Clause of the 

Fourteenth Amendment.)(citing Phillips v. Roane county, Tenn., 534 F.3d 531, 

539 (6th Cir. 2008)). 

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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 

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. 

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 In the case presently before the Court, the Amended Complaint 

alleges that plaintiff choked on his food, vomited, hit his head and 

was knocked unconscious. Complaint, pp. 5-6. The Amended Complaint 

further alleges that plaintiff experience great pain and requested 

medical treatment but that no treatment was ever provided to him by 

“the Muskingum County Sheriff’s Department,” Nurse Love, or Dr. 

Khoury. Id. These allegations are, in the view of this Court, 

sufficient to state a colorable § 1983 claim against defendants Nurse 

Love and Dr. Khoury. 

 The Medical Defendants argue that plaintiff’s claims should be 

dismissed because plaintiff failed to file an affidavit of merit. 

Motion to Dismiss, pp. 4-8. Ohio Civ. R. 10(D)(2) requires that an 

affidavit of merit be included with any “complaint that contains a 

medical claim . . . as defined in section 2305.113 of the Revised 

Code.” A “medical claim,” for purposes of O.R.C. § 2305.113, is 

defined as a claim “that arise[s] out of the medical diagnosis, care, 

or treatment of any person.” The Ohio Supreme Court has held that a 

plaintiff’s failure to provide an affidavit of merit is fatal to a 

claim under state law. Fletcher v. Univ. Hosps. of Cleveland, 120 

Ohio St. 3d 167, 172 (Ohio 2008). 

 As discussed supra, the Amended Complaint asserts federal claims 

under § 1983 against the Medical Defendants as well as supplemental 

state law claims for “negligently failing to give [plaintiff] proper 

medical treatment.” Amended Complaint, p. 5. Plaintiff’s state law 

claims alleging improper medical treatment are “medical claims” 

arising under Ohio law. See O.R.C. § 2305.113. Plaintiff’s failure 

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to attach an affidavit of merit to the Amended Complaint therefore 

requires dismissal of those state law claims. See Fletcher, 120 Ohio 

St. 3d at 172; Matson v. Montgomery Cnty. Jail Medical Staff 

Personnel, No. 3:10cv104, 2011 WL 2442706, at *6 (S.D. Ohio Apr. 18, 

2011) (“To the extent Plaintiff's Amended Complaint alleges medical 

claims arising under Ohio law, Defendants' argument that Plaintiff's 

failure to attach the affidavit of merit requires dismissal is 

correct.”) (citing Weatherford v. Hamilton Cnty. Sheriff, 1:09-cv-432, 

2010 U.S. Dist. LEXIS 85799, at *7 (S.D. Ohio 2010)). However, Ohio 

Civ. R. 10(D)(2) “has no application to Plaintiff's claim arising 

under 42 U.S.C. § 1983: Plaintiff’s claim is based on alleged 

violations of the Eighth Amendment of the United States Constitution, 

42 U.S.C. § 1983 has no requirement for an affidavit of merit, and the 

Erie doctrine is not implicated.” Matson, 2011 WL 2442706 at *6 

(citing Weatherford, 2010 U.S. Dist. LEXIS 85799 at *5-6). See also 

Muncy v. Siefker, No. 3:12cv2301, 2013 WL 1284233, at *3 (N.D. Ohio 

Mar. 26, 2013) (“Ohio Civ. R. 10(D)(2) does not apply to the 

Plaintiffs' § 1983 claims because those claims allege violations of 

[Plaintiff’s] rights as guaranteed by the United States Constitution, 

and do not raise medical claims under Ohio law. Neither Ohio nor any 

other State may alter or negate the rights protected by the United 

States Constitution or modify the means which Congress provided for 

the enforcement of those rights.”). The Medical Defendants’ argument 

that plaintiff’s § 1983 claim should also be dismissed because 

plaintiff failed to attach an affidavit of merit to the Amended 

Complaint is therefore without merit. 

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 The Medical Defendants also argue that plaintiff’s § 1983 claims 

should be dismissed because plaintiff failed to exhaust available 

administrative remedies as required by the Prison Litigation Reform 

Act (“PLRA”), 42 U.S.C. § 1997e(a). Motion to Dismiss, p. 10. The 

Medical Defendants refer to Wiggins v. Corrections Corp. of Am., 27 F. 

App’x 315 (6th Cir. 2001); Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 

1999); and Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), for the 

proposition that plaintiff’s failure to allege exhaustion and to 

attach “any decision demonstrating the administrative disposition of 

his claims” requires dismissal. Motion to Dismiss, p. 11. These 

arguments are not well taken. 

The PLRA requires that a prisoner filing a claim under federal 

law relating to prison conditions must first exhaust available 

administrative remedies.3

 Porter v. Nussle, 534 U.S. 516 (2002); Booth 

v. Churner, 532 U.S. 731 (2001). In order to satisfy this exhaustion 

requirement, an inmate plaintiff must “complete the administrative 

review process in accordance with the applicable procedural rules[.]” 

Woodford v. Ngo, 548 U.S. 81, 88 (2006). However, an inmate’s 

“[f]ailure to exhaust is an affirmative defense under the PLRA, and [] 

inmates are not required to specifically plead or demonstrate 

exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 

(2007) (abrogating, among other cases, Toombs, 139 F.3d 1102). A 

motion to dismiss under Rule 12(b)(6) based on a claimed failure to 

																																																								

3 The statute provides, in pertinent part: “No action shall be brought with 

respect to prison conditions under section 1983 of this title, or any other 

Federal law, by a prisoner confined in any jail, prison, or other 

correctional facility until such administrative remedies as are available are 

exhausted.” 42 U.S.C. § 1997e(a).

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exhaust is meritorious only if it is clear from the face of the 

complaint itself that the defense must succeed. See id. at 920-21. 

Those are not the circumstances in the case presently before the 

Court. The Medical Defendants’ argument that the Amended Complaint 

should be dismissed for failure to exhaust administrative remedies 

under the PLRA is therefore without merit. 

B. Aramark’s Motion

 Aramark moves for judgment on the pleadings pursuant to Fed. R. 

Civ. P. 12(c). The Amended Complaint alleges that Aramark violated 

plaintiff’s Eighth Amendment rights by “refusing [plaintiff] medical 

care.” Amended Complaint, p. 5. Aramark argues, inter alia, that the 

Amended Complaint does not allege facts sufficient to satisfy the 

subjective component of an Eighth Amendment deliberate indifference 

claim. Aramark’s Motion, p. 14. The Court agrees. 

 As discussed supra, an Eighth Amendment deliberate indifference 

claim includes both an objective and subjective component. Farmer, 

511 U.S. at 834. 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, 273 F.3d at 703 (citing Farmer, 511 

U.S. at 837). 

 The Amended Complaint alleges that Aramark “is under contract 

with the Muskingum County Jail to provide meals to the inmates at the 

county jail.” Amended Complaint, p. 5. However, the Amended 

Complaint contains no other factual allegations against Aramark and 

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none whatsoever relating to any involvement on Aramark’s part in 

plaintiff’s medical treatment. Indeed, plaintiff recognizes that 

”Aramark had no obligation to provide medical treatment at the 

[M]uskingum County Jail.” See Plaintiff’s Response to Aramark’s 

Motion, PAGEID 137. Accordingly, the Amended Complaint fails to state 

a colorable § 1983 claim for denial of medical care against defendant 

Aramark. 

WHEREFORE, Aramark’s Motion to Strike, Doc. No. 30, is GRANTED. 

The CLERK is DIRECTED to STRIKE pages two (2) through nine (9) of 

Plaintiff’s Response to Aramark’s Motion, Doc. No. 28. It is 

RECOMMENDED that the Medical Defendants’ Motion to Dismiss, Doc. No. 

39, be GRANTED in part and DENIED in part. It is SPECIFICALLY

RECOMMENDED that plaintiff’s state law negligence claims against 

defendants Nurse Shane Love and Dr. Anthony Khoury be DISMISSED but 

that plaintiff’s claim under 42 U.S.C. § 1983 against these defendants 

for denial of medical care be permitted to proceed. 

 It is FURTHER RECOMMENDED that Aramark’s Renewed Motion, Doc. No. 

34, 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 

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

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 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 Federation of 

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

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

November 4, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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