IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Howard Boddie, Jr.,

Plaintiff,

v. Case No. 2:18-cv-505

Charlotte Jenkins,

et al.,

Defendants.

ORDER

On May 22, 2018, Howard Boddie, Jr., a former Ohio state

prisoner, filed this civil rights action pursuant to 42 U.S.C.

§1983 against Charlotte Jenkins, former warden at the Chillicothe

Correctional Institution (“CCI”); Norm Robinson, also a warden at

CCI; Alice Ault and Beth Higgenbotham, CCI health care

administrators; and Medical Director Dr. Andrew Eddy. Plaintiff

alleges that while he was incarcerated at CCI, he was denied proper

medical treatment for: symptoms stemming from an orbital fracture

of his right eye; a left shoulder injury (for which he received

surgery in December of 2016 after his release from incarceration on

May 26, 2016); a right groin injury resulting in a gluteus minimus

tear (he refers to his treatment at the OSU Wexner Medical Center

in 2011 for chest pain, which including the placement of a catheter

in the right groin area); left wrist pain (stemming from a prior

injury and surgery); symptoms attributed to a prior knee surgery in

May, 2009; and right foot heel spurs.

On June 4, 2018, the magistrate judge issued a report and

recommendation following an initial screen of the complaint

pursuant to 28 U.S.C. §1915(e)(2). The magistrate judge noted that
plaintiff had previously filed substantially similar claims against

the above defendants and others in the case of Boddie v.

Higginbotham, 2:14-cv-2395. In that case, the complaint and prison

grievances filed by plaintiff reveal that plaintiff complained

about defendant’s treatment of the same medical conditions he

refers to in the instant case. The judge assigned to that case

accepted the recommendation of the magistrate judge that the case

be dismissed as barred by the two-year statute of limitations

applicable to §1983 actions in Ohio. See Browning v. Pendleton,

869 F.2d 989, 992 (6th Cir. 1989)(en banc). In a decision filed on

February 3, 2017, the Sixth Circuit Court of Appeals affirmed the

dismissal. Boddie v. Higginbotham, Court of Appeals Case No. 16-

3502. See Case No. 2:14-cv-2395, Doc. 47.

In her report and recommendation, the magistrate judge

concluded that, insofar as plaintiff’s claims mirror those asserted

against the defendants in the prior case, they are barred by the

doctrine of res judicata. The magistrate judge also recommended

that the instant action be dismissed because plaintiff’s claims are

barred by the two-year limitations period. The magistrate judge

noted that because the complaint in this case was filed on May 22,

2018, any claims which arose prior to May 22, 2016, are barred. 

Defendants had no further involvement in plaintiff’s medical care

following his release from custody on May 26, 2016. The magistrate

judge observed that the complaint fails to allege the denial of any

medical treatment during the four-day period from May 22, 2016, to

plaintiff’s release from incarceration.

This matter is before the court on plaintiff’s objection (Doc.

6) to the magistrate judge’s report and recommendation. If a party

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objects within the allotted time to a report and recommendation,

the court “shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to

which objection is made.” 28 U.S.C. §636(b)(1); see also Fed. R.

Civ. P. 72(b). Upon review, the Court “may accept, reject, or

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

by the magistrate judge.” 28 U.S.C. §636(b)(1). Although

plaintiff’s objection was filed one day late, the court will

consider the objection.

As the magistrate judge correctly explained, 28 U.S.C.

§1915(e) requires sua sponte dismissal of an action upon the

court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon

which relief may be granted. Grinter v. Knight, 532 F.3d 567, 572

(6th Cir. 2008). Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard. See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.

12(b)(6) standards to review under 28 U.S.C. §§1915A and

1915(e)(2)(B)(ii)).

Courts ruling on a motion to dismiss under Rule 12(b)(6)

construe the complaint in a light most favorable to the plaintiff,

accepting all well-pleaded allegations in the complaint as true,

and determining whether plaintiff undoubtedly can prove no set of

facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

a motion to dismiss, the “complaint must contain either direct or

inferential allegations with respect to all material elements

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necessary to sustain a recovery under some viable legal theory.” 

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). While the

complaint need not contain detailed factual allegations, the

“[f]actual allegations must be enough to raise the claimed right to

relief above the speculative level” and “state a claim that to

relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007).

In addition, a complaint showing on its face that relief is

barred by an affirmative defense is properly subject to a 12(b)(6)

motion to dismiss for failure to state a claim upon which relief

can be granted. Rauch v. Day and Night Manuf. Corp., 576 F.2d 697,

702 (6th Cir. 1978)(holding that a limitations defense may be

raised by a Rule 12 motion); see also Riverview Health Institute

LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010);

New England Health Care Employees Pension Fund v. Ernst & Young,

LLP, 336 F.3d 495, 501 (6th Cir. 2003)(dismissal on limitations

ground). 

In his objection, plaintiff argues that the magistrate judge

erred in applying the res judicata and limitations bars. The court

agrees with the analysis of the magistrate judge. The claims

asserted in this case involve the defendants’ alleged failure to

provide plaintiff with medical treatment for the same conditions he

described in his 2014 case.

The magistrate judge also correctly noted that plaintiff’s

allegations concerning the medical treatment he received after his

release from incarceration for the same pre-existing injuries that

were the subject of the 2014 case do not salvage his untimely

medical indifference claims because a difference of opinion over an

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appropriate treatment or diagnosis of a medical condition is

insufficient to state a claim of deliberate indifference under the

Eighth Amendment. The complaints and records in this case and the

2014 case show that this is not a case where no medical treatment

was provided. Rather, plaintiff disagreed with the type of

treatment being provided. A complaint does not state an Eighth

Amendment claim merely by pleading that the plaintiff disagrees

with the diagnosis of prison medical personnel or the treatment

provided by the institution. Estelle v. Gamble, 429 U.S. 97, 107-

08 (1976) Rhinehart v. Scutt, 509 F.App’x 510, 513 (6th Cir.

2013)(neither negligence alone, nor a disagreement over the wisdom

or correctness of a medical judgment is sufficient to allege a

deliberate indifference claim); Chapman v. Parke, 946 F.2d 894

(table), 1991 WL 203080 at *2 (6th Cir. Oct. 4, 1991)(difference of

opinion regarding treatment is insufficient to state an Eighth

Amendment claim).

With his objection, plaintiff submitted new exhibits

consisting of medical records relating to his treatment following

his release from incarceration and the grievances he filed in March

and April of 2016. Plaintiff may not offer, for the first time in

an objection, evidence which was never presented to or considered

by the magistrate judge. Murr v. United States, 200 F.3d 895, 902

n. 1 (6th Cir. 2000).

Even if the court were to consider these documents, the

grievances and the institution’s responses to those grievances show

that the medical staff at CCI were not indifferent to plaintiff’s

complaints; rather, plaintiff disagreed with the nature of the

treatment he received. The grievances also establish that

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plaintiff had knowledge of his claims prior to the start of the

limitations period. Likewise, the recent medical records document

plaintiff’s post-release treatment for his pre-2014 orbital and

wrist fractures and right heel spurs, and his 2011 treatment for

chest pains. These records show, at most, a difference of opinion

over the appropriate treatment or diagnosis of plaintiff’s

conditions, and are insufficient to support a claim under the

Eighth Amendment.

The magistrate judge also did not err in rejecting plaintiff’s

argument that his claims are saved by the continuing violations

doctrine. The continuing violation doctrine allows for tolling

based on continuing unlawful acts. The Sixth Circuit has

recognized two categories of continuing violations: 1) those

alleging serial violations; and 2) those identified with a

longstanding and demonstrable policy of discrimination. Sharpe v.

Cureton, 319 F.3d 259, 266 (6th Cir. 2003). The continuing

violation doctrine is rarely applied in §1983 cases. Id. at 267. 

The Sixth Circuit held in plaintiff’s previous case that his claim

was not tolled by the continuing violation doctrine. The Sixth

Circuit noted that plaintiff’s claim reflected, at most, a dispute

over the proper course of his medical treatment rather than a

continuing set of wrongs which would give rise to a continuing

violation for statute of limitations purposes. See Boddie v.

Higginbotham, 2:14-cv-2395, Doc. 47, pp. 6-7. This court concludes

that the same reasoning applies to plaintiff’s claims in the

instant case.

Finally, the magistrate judge correctly found that none of the

Ohio statutes relied on by plaintiff support his assertion that his

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claims are not barred by the statute of limitations. Those

statutes, specifically Ohio Rev. Code §§2305.09(B), 2305.10(B),

2305.11(B), 2305.113(B), and 2305.13(B), do not operate to toll the

running of the limitations period in this case. 

Having reviewed the report and recommendation and plaintiff’s

objection, the court finds that plaintiff’s objection is without

merit. The court overrules plaintiff’s objection (Doc. 6), and

adopts the magistrate judge’s report and recommendation (Doc. 4). 

This action is hereby dismissed pursuant to 28 U.S.C.

§1915(e)(2)(B)(ii) for failure to state a claim for which relief

may be granted. The clerk shall enter judgement dismissing this

case. The clerk is directed to mail a copy of this order to the

Attorney General of Ohio, Corrections Litigation Section, 150 East

Gay St., 16th Floor, Columbus, Ohio 43215.

It is so ordered. 

Date: June 25, 2018 s/James L. Graham 

 James L. Graham

 United States District Judge

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