UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL SLOCUM, Case No. 1:18-cv-423

Plaintiff, Barrett, J.

Litkovitz, M.J.

vs.

SGT. S. BEAR, et al., ORDER AND REPORT

Defendants. AND RECOMMENDATION

I. Procedural history

Plaintiff, an inmate currently incarcerated at the Southern Ohio Correctional Facility

(SOCF), brings this pro se action under 42 U.S.C. § 1983 alleging violations of his civil rights by 

defendants Sgt. S. Bear, C/O Crabtree, C/O Cooper, and C/O Lewis in connection with an 

alleged assault by the officers on October 27, 2017. Plaintiff was granted leave to proceed in 

forma pauperis and the original complaint was filed on June 19, 2018. (Docs. 2, 3). Service of 

process was ordered on defendants on June 19, 2018. (Doc. 5). Summonses were returned 

unexecuted for defendants “CO Crabtree,” “CO Cooper,” and “CO Lewis” with a letter from the 

SOCF Staff Legal Office explaining that the envelopes addressed to these individuals were being 

returned because SOCF employed multiple persons with the names Crabtree, Cooper and Lewis 

and the intended recipients were unknown. (Doc. 7). The Court notified plaintiff that it 

proposed to dismiss this action without prejudice as to these defendants and that plaintiff must 

either serve a summons and a copy of the complaint on these defendants within 30 days or show 

cause why service could not be effected within this time period. (Doc. 10). Plaintiff was advised 

that failure to comply with the terms of the Court’s Order would result in a Report and 

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Recommendation to the District Judge that the claims against these individuals be dismissed for 

lack of service. (Id.). 

Plaintiff filed a response to the Order to show cause on October 18, 2018, seeking an 

extension of time to complete service. (Doc. 17). Plaintiff asserts that he took several steps to 

obtain the first names or initials for Crabtree, Cooper and Lewis. Plaintiff states he sent written 

requests to the Deputy Warden of Operations, the Deputy Warden of Administration, and the 

Inspector’s Office and the Institutional Investigator, both of which allegedly have access to the 

institution’s CT-TV systems and could identify each correction officer present on the date of the 

incident, all to no avail. Plaintiff also alleges that he requested help from the assigned case 

manager, who has not cooperated with him. Plaintiff subsequently filed a motion on January 22, 

2019, asking the Court to extend the January 25, 2019 deadline for serving defendants Crabtree, 

Cooper and Lewis until he amended his complaint and discovery began. (Doc. 24). Plaintiff 

filed a motion to amend the complaint several days later. (Doc. 26). 

The record shows that summons was returned executed for defendant Sgt. Bear on July 

23, 2018. (Doc. 8). The certificate of service was signed by an individual other than Sgt. Bear. 

On September 12, 2018, the Court issued an Order directing plaintiff to move to have default 

entered against defendant Bear or to show cause why this action should not be dismissed for lack 

of prosecution. (Doc. 11). Plaintiff was advised that failure to comply with the Order would 

result in a Report and Recommendation to the District Judge that the action should be dismissed 

as to defendant Bear. 

On September 24, 2018, counsel for the State of Ohio made an appearance in this matter 

as an interested party on behalf of defendant Bear. (Doc. 12). The State moved to dismiss this 

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action as it relates to defendant Shannon Bear pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient 

service of process, or for alternative relief. The State asserts that although the docket reflects 

that service was executed on July 23, 2018, that is not accurate because defendant Bear took

leave from SOCF beginning on July 18, 2018, due to an occupational injury and had not returned 

to work as of July 23. (Doc. 13 at 6-7). The State contends that service was not properly made

on Bear under any of the provisions of Fed. R. Civ. P. 4(e). In the alternative, the State seeks to 

amend the docket to reflect that service has not been executed on Bear. The State also argues 

that no relief can to granted to plaintiff unless “a reply has been filed” pursuant to the Prison 

Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(g).

1

 

In response to the State’s motion on behalf of defendant Bear, plaintiff argues that 

defendant Bear was properly served prior to taking medical leave. (Doc. 28). Plaintiff asks the 

Court to amend the docket sheet to reflect service of process on Bear and to order defendant Bear 

to reply to the complaint. (Doc. 30). 

Plaintiff also moves the Court to order that service be made on all defendants at the 

address of the Department of Rehabilitation and Correction. (Doc. 29). Plaintiff alleges that it is 

impossible for him to serve defendants because SOCF “has established a practice of not 

accepting certified mail addressed to correctional staff.” (Id. at 1). 

II. Service on defendants

Rule 12(b)(5) provides that insufficient service of process is a “defense to a claim for 

 1 Section 1997e(g)(1) provides: “Any defendant may waive the right to reply to any action brought by a prisoner 

confined in any jail, prison, or other correctional facility under section 1983 of this title or any other Federal law. 

Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations 

contained in the complaint. No relief shall be granted to the plaintiff unless a reply has been filed.” 42 U.S.C. § 

1997e(g)(1).

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relief in any pleading” that may be asserted by motion. Fed. R. Civ. P. 12(b)(5). Proper service 

of process is required in order for this Court to obtain personal jurisdiction over each defendant. 

O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 353 (6th Cir. 2003). The plaintiff 

is responsible for having the summons and complaint served upon defendants within the time 

period allotted by Fed. R. Civ. P. 4(m). Fed. R. Civ. P. 4(c)(1). Rule 4(m) sets forth the Court’s 

obligation when the plaintiff fails to timely complete service of process. The Rule provides, in 

pertinent part:

If a defendant is not served within 90 days after the complaint is filed, the court--

on motion or on its own after notice to the plaintiff--must dismiss the action 

without prejudice against that 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. . . . 

Fed. R. Civ. P. 4(m). Thus, if the plaintiff does not show good cause justifying his failure to 

timely serve the complaint, the court shall either (1) dismiss the complaint without prejudice, or 

(2) direct that service of process be effected within a specified time. Greene v. Venatter, No. 

2:13-cv-00345, 2014 WL 559154, *2 (S.D. Ohio February 11, 2014). If the plaintiff shows good 

cause for failing to comply with the 90-day requirement, the Court shall extend the time for service. 

Id. 

Where, as here, the plaintiff is a pro se prisoner proceeding in forma pauperis, “the court 

is obligated to issue plaintiff’s process to a United States Marshal who must in turn effectuate 

service upon the defendants, thereby relieving a plaintiff of the burden to serve process once 

reasonable steps have been taken to identify for the court the defendants named in the 

complaint.” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). 

Plaintiff has taken reasonable steps to learn the identities of the corrections officers 

named as defendants in the complaint. (Doc. 17). Despite his efforts, he has not been able to 

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learn their identities. Under these circumstances, dismissal of the unidentified defendants is not 

proper, but rather plaintiff should be given the opportunity to do limited discovery in order to 

identify the names of these defendants. Murray v. Ohio Dept. of Corrections, No. 1:14-cv-168, 

2014 WL 1382401, at *4 (S.D. Ohio Apr. 8, 2014). As explained by the Court:

Although designation of a “John Doe” or “unknown” defendant is not favored in 

the federal courts, it is permissible when the identity of the alleged defendant is 

not known at the time the complaint is filed and plaintiff could identify defendant 

through discovery. Yates v. Young, 772 F.2d 909 (6th Cir. 1985) (unpublished), 

1985 WL 13614, citing Schiff v. Kennedy, 691 F.2d 196 (4th Cir. 1982); Gillespie 

v. Civiletti, 629 F.2d 637 (9th Cir. 1980); Maclin v. Paulson, 627 F.2d 83 (7th Cir. 

1980). In accord Downie v. City of Middleburg Hts., 76 F. Supp.2d 794, 801 n. 5 

(N.D. Ohio 1999). The Federal Rules of Civil Procedure do not require the Court 

to dismiss unknown defendants simply because the plaintiff is unaware of the 

identity of those defendants at the time of the filing of the complaint. Rather, “the 

plaintiff should be given the opportunity through discovery to identify the 

unknown defendants, unless it is clear that discovery would not uncover the 

identities, or that the complaint would be dismissed on other grounds.” Gillespie, 

629 F.2d at 642; see also Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 

1999). 

Murray, 2014 WL 1382401, at *4 (quoting Robinson v. Doe, No. 1:07-cv-729, 2009 WL 

650383, at *2 (S.D. Ohio March 10, 2009)). Under the circumstances of this case, it is 

appropriate to permit service of the complaint on a high-ranking official who could identify the 

unknown defendants through discovery. Id. (citing Mosby v. Doe, No. 08-cv-677, 2009 WL 

192502, at *1 (W.D. Wis. Jan. 27, 2009)). The SOCF Warden is in a position to know or 

determine the identities of the corrections officers for whom plaintiff has provided only a 

surname. The Court shall order service of the summons and complaint on the SOCF Warden for 

this limited purpose only. Once the Warden is served and has filed a response to plaintiff’s 

complaint, plaintiff shall be permitted to serve discovery on the Warden to determine the first 

names of defendants Crabtree, Cooper and Lewis. Upon discovery of the full names of the 

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unidentified defendants, plaintiff will be required to amend his complaint to identify them and 

the SOCF Warden will be dismissed. 

 It appears that Sgt. Bear has not yet been served, although a certificate of service for 

defendant Bear was returned signed and the docket sheet reflects that service was executed on 

defendant Bear on July 23, 2018. (Doc. 8). It is not clear whether Sgt. Bear has returned to 

work at SOCF and whether plaintiff can now execute service on defendant Bear at SOCF. 

Therefore, the Court will direct the State to provide information to the Court on defendant Bear’s 

work status so that a determination can be made as to whether he should be re-served. The Court 

will extend the time for plaintiff to perfect service on defendant Bear for good cause shown. 

III. Motion for leave to amend the complaint

Plaintiff filed a motion to amend the complaint on January 31, 2019 and a proposed 

amended complaint.

2

 (Doc. 26; see Doc. 27). Rule 15(a) provides that a complaint may be 

amended once as a matter of course within 21 days of service of a responsive pleading. Fed. R. 

Civ. P. 15(a)(1)(B). If plaintiff wishes to amend the complaint after the 21-day period has 

expired, he must obtain consent of the opposing parties or leave of the Court. Fed. R. Civ. P. 

15(a)(2). The grant or denial of a motion to amend under Fed. R. Civ. P. 15(a) is within the 

discretion of the trial court, and leave to amend a complaint should be liberally granted. Foman 

v. Davis, 371 U.S. 178, 182 (1962). “In deciding whether to grant a motion to amend, courts 

should consider undue delay in filing, lack of notice to the opposing party, bad faith by the

moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to 

 2 Although plaintiff captioned the motion as a motion to amend and supplement the complaint, plaintiff does not set 

out events that happened after the date of the original complaint in the proposed amendment. (Docs. 26, 27). The 

motion is therefore properly construed as a motion to amend the complaint. See Fed. R. Civ. P. 15. 

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the opposing party, and futility of amendment.” Brumbalough v. Camelot Care Ctrs., Inc., 427 

F.3d 996, 1001 (6th Cir. 2005). Proposed amendments to a prisoner’s complaint must be sua

sponte reviewed under 28 U.S.C. §§ 1915 and 1915A. 

Plaintiff requests leave to identify defendants C/O Crabtree, C/O Cooper and C/O Lewis 

as defendants John Does #1-#3 in the amended complaint. (Doc. 26). Plaintiff alleges these 

defendants have not yet been served with the summons and the complaint, and he will not be 

able to serve them until discovery has been scheduled by the Court. (Doc. 26). Plaintiff also 

proposes to add claims against four new defendants: SOCF Warden Ron Erdos, C/O John Doe # 

4, C/O Bashum, and RN James. Plaintiff seeks to add claims against C/O Bashum, C/O John 

Doe #4, and RN James for deliberate indifference to his medical needs in connection with the 

alleged assault by the other defendants. Plaintiff alleges that Erdos is liable because he was 

acting as the SOCF warden, he is in charge of and oversees the training of the C/Os at SOCF, 

and he failed to train the defendant SOCF staff members on October 27, 2017. Finally, plaintiff

moves to amend the complaint to specify that he is suing defendants in their individual and 

official capacities; to number the paragraphs in his complaint; and to amend his request for relief. 

Plaintiff’s motion to amend the complaint should be denied insofar as plaintiff moves for 

leave to name the three corrections officers involved in the alleged assault as John Doe 

defendants. Plaintiff has already provided the surnames of these corrections officers. The proper 

procedure for discovering the identities of these defendants is set forth above. 

The motion to amend should also be denied insofar as plaintiff seeks to add new claims 

for deliberate indifference to his medical needs against three new defendants. In order to state a 

claim for relief under 42 U.S.C. § 1983 for a denial of medical care, a prisoner “must allege acts 

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or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” 

Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Comstock v. McCraty, 273 F.3d 693, 702 

(6th Cir. 2001). Plaintiff must allege facts showing that the “alleged mistreatment was 

objectively serious,” and that prison officials “subjectively ignored the risk to the inmate’s 

safety.” Rhinehart v. Scutt, 509 F. App’x 510, 513 (6th Cir. 2013) (citing Bishop v. Hackel, 636 

F.3d 757, 766 (6th Cir. 2011)). Plaintiff must allege that prison officials have denied his 

reasonable requests for medical care when such need is obvious, and when he is susceptible to 

undue suffering or threat of tangible residual injury. Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir. 

1983); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976); see also Estelle, 429 U.S. at 106. 

Allegations of negligence in diagnosing or treating medical conditions are not actionable under § 

1983. Estelle, 429 U.S. at 106; Byrd, 701 F.2d at 595 n.2; Westlake, 537 F.2d at 860-61 n.5. A 

prison official may be held liable under the Eighth Amendment for denying humane conditions 

of confinement, including proper medical care, only if “he knows that inmates face a substantial 

risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 

Farmer v. Brennan, 511 U.S. 825, 847 (1994).

In this case, plaintiff alleges that defendants C/O Bashum, C/O John Doe #4, and RN 

James were deliberately indifferent to his medical needs following the alleged assault by 

defendants Bear, Crabtree, Cooper and Lewis. Plaintiff alleges that he immediately told Bashum 

that he had been assaulted by the officers, he needed medical attention, and Bashum told him to 

go back to his block. (Doc. 26, p. 4). Plaintiff asserts when he went back to J2North and entered 

the “bullpen,” he asked C/O John Doe #4 in the control booth to call “medical” for him but 

Crabtree and Cooper began laughing and escorted him to his cell. Plaintiff alleges that when he 

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was escorted to the SOCF infirmary later that day, he told RN James that he had been assaulted 

and his forehead, right eye, elbow, ribs and side were hurting. (Id., p. 5). He alleges that 

defendant James “never checked me out. She checked my vitals and gave me ibuprofen, that’s 

it.” (Id.). Plaintiff asserts that he woke up the next day with a bruised right eye, forehead and 

body. (Id., p. 5). He contends that when he was seen in sick call two days later, another nurse 

referred him to a doctor who “verified” plaintiff’s wounds and “story” and prescribed him 

Tylenol. (Id., p. 6). 

Plaintiff’s complaint fails to state a deliberate indifference claim under the Eighth 

Amendment against defendants Busham, John Doe #4, and RN James. Plaintiff alleges he woke 

up the day after the assault with his right eye, forehead, and body bruised, but plaintiff does not 

allege any facts that indicate he had an obvious injury or medical need immediately after the 

alleged assault. (Id., p. 5). Plaintiff alleges only that he told C/O Busham that he needed

medical attention because he had been assaulted. (Id.). Nor has plaintiff alleged any facts to 

suggest that either C/O Busham or John Doe #4 subjectively ignored a risk to his health or 

safety. Plaintiff alleges that he told RN James when he saw her later that morning in the 

infirmary that he was in pain, but he has alleged no facts to indicate that the treatment RN James 

administered was inadequate, or what treatment he thinks he should have received. Plaintiff’s 

alleged disagreement over the type of medical care RN James administered amounts to nothing 

more than a difference of opinion on the appropriateness of his medical treatment, which is not 

actionable under the Eighth Amendment. Rhinehart, 509 F. App’x at 513-14 (citing Westlake, 

537 F.2d at 860 n.5). Where a “prisoner alleges only that the medical care he received was 

inadequate, ‘federal courts are generally reluctant to second guess medical judgments.’” 

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Alspaugh v. McConnell, 643 F.3d 162, 168 (6th Cir. 2011) (quoting Westlake, 537 F.2d at 860 n. 

5). In such cases, the medical treatment must be so “woefully inadequate as to amount to no 

treatment at all” in order to give rise to a constitutional claim under § 1983. Id. The facts 

alleged by plaintiff are insufficient to state a claim for deliberate indifference to a serious 

medical need under the Eighth Amendment. 

Plaintiff’s motion to amend should also be denied insofar as he seeks to bring a claim 

against Warden Erdos in his supervisory capacity. To state a claim for supervisor liability 

against defendant Erdos, plaintiff must allege that Erdos “at least implicitly authorized, 

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

Hays v. Jefferson Cnty, Ky., 668 F.2d 869, 874 (6th Cir.1982)). See also McQueen v. Beecher 

Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006). Plaintiff has not alleged any facts to show that 

Erdos authorized or acquiesced in the unconstitutional conduct of another defendant so as to 

support a claim of supervisory liability. 

In addition, plaintiff’s request to amend the complaint to add a claim for injunctive relief

should be denied. Plaintiff requests a permanent injunction requiring “[a]ll SOCF employees

working as security personnel to be armed with video/audio capabilities . . . so that this type of 

excessive force does not happen to other inmates, as well as to protect SOCF employees.” (Doc. 

26 at 10). The PLRA prohibits an injunction of this nature which is more extensive than 

necessary to correct the violation of the federal right of the plaintiff in the case before the court. 

The PLRA provides that “[p]rospective relief in any civil action with respect to prison conditions 

shall extend no further than necessary to correct the violation of the Federal right of a particular 

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plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A). Thus, plaintiff is not entitled to the additional 

injunctive relief he proposes. 

Finally, plaintiff has clarified that he is suing the defendants in both their individual and 

official capacities. However, because plaintiff did not specify in the original complaint that he 

was suing the individual defendants in their individual capacity only, it is not necessary that the 

complaint be amended to reflect this clarification. 

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s motion to strike (Doc. 25) his original motion to amend the complaint (Doc. 

21) and motion to compel (Doc. 22) is GRANTED. The original motion to amend (Doc. 21) 

and motion to compel (Doc. 22) are STRICKEN from the docket. 

2. The claims against the individual defendants in the original complaint shall be construed 

as claims against them in their individual and official capacities. 

3. The State of Ohio’s motion to dismiss the complaint filed on behalf of defendant Bear

(Doc. 13) is DENIED without prejudice to resubmission. Counsel for the State of Ohio shall file 

a notice, within ten (10) days of the date of this Order, stating whether Sgt. Bear has returned to 

work at SOCF and is amenable to service there. Plaintiff shall have sixty (60) days from the

filing date of this Order to effectuate service on defendant Sgt. S. Bear. 

4. Plaintiff’s motion to amend the docket sheet to reflect service of process on Bear and to 

order defendant Bear to reply to the complaint (Doc. 30) is DENIED. 

5. Plaintiff’s motion for an Order directing that service be made on defendants at the 

address of the Director of the Department of Rehabilitation and Corrections (Doc. 29) is 

DENIED. 

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6. The United States Marshal shall serve a copy of the complaint, summons, and this Order 

upon the SOCF Warden as directed by plaintiff. All costs of service shall be advanced by the 

United States. Plaintiff shall be granted leave to proceed against the SOCF Warden solely for 

the purpose of determining the identities of the unidentified SOCF corrections officers named as 

defendants in this lawsuit.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff’s motion to amend the complaint (Doc. 26) be DENIED.

Date: 5/3/19 ___s/Karen L. Litkovitz______ 

Karen L. Litkovitz 

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL SLOCUM, Case No. 1:18-cv-423

Plaintiff, Barrett, J.

Litkovitz, M.J.

vs.

SGT. S. BEAR, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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