govinfo:USCOURTS-ohsd-2_22-cv-03802-2

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
 
SHANNON MCDANIELS,    : 
       :  
  Plaintiff,    : 
       :  Case No. 2:22-cv-03802 
 v .       :  
       :  Chief Judge Algenon L. Marbley 
ANNETTE CHAMBERS-SMITH, et al.,  : 
       :  Magistrate Judge Karen L. Litkovitz 
  Defendants.    : 
       :  
 
OPINION & ORDER 
 Before this Court are two Reports a nd Recommendations (“R&R” or “R&Rs”) from 
Magistrate Judge Litkovitz , in which she recommends  that:  (1) this case  be dismissed without 
prejudice as to four defendants for failure of service (ECF No. 22, the “First R&R”); and (2) (a) 
Defendants’ motion to dismiss (ECF No. 14) be granted; and (2) (b) Plaintiff’s complaint be 
dismissed for failure to state a claim as to the remaining defendants for various reasons (ECF No. 
23, the “Second R&R”).  For the reasons set forth below:   
 This Court ADOPTS the First R&R (ECF No. 22); and 
 Plaintiff’s Objections to the Magistrate  Judge’s Second R&R (ECF No. 26) are 
OVERRULED in part and SUSTAINED in part , and accordingly, the Second R&R 
(ECF No. 23) is ADOPTED in part and REJECTED in part.  
o Specifically, the Second R&R is ADOPTED as to its conclusions regarding 
Defendants Chambers-Smith and Okereke a nd Plaintiff’s retaliation claim—so 
these Defendants are DISMISSED—but REJECTED as to Plaintiff’s Eighth 
Amendment claims against the remaining Defendants. 
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 The Eighth Amendment issue is REMANDED to the Magistrate Judge for consideration 
of the Eighth Amendment claims against all remaining Defendants, consistent with the 
above; 
 Defendants’ Motion to Di smiss (ECF No. 14) is HELD IN ABEYANCE pending this 
Court’s adjudication of the substantive R&R resulting from this Court’s remand of this 
matter to the Magistrate Judge; 
 The parties’ discovery deadline is reset for NINETY (90) DAYS from the date on which 
this Court adjudicates the substantive R&R resulting from this Court’s remand of this 
matter to the Magistrate Judge; and 
 The parties have until FOURTY-FIVE (45) DAYS after discovery closes to file dispositive 
motions.  
I. BACKGROUND 
This Court generally adopts the Second R&R’s background ( see ECF No. 23 at 1–2), but 
highlights a few key facts here for purposes of this analysis.  Plai ntiff alleges that, from the start 
of his time at the Corrections Reception Center (“CRC”), he was “in fear for his life and under 
constant torture by staff members and inmates at staff direction” and was “subject to abuse and 
neglect by the Defendants.”  (ECF No. 1 at ¶¶ 3, 19).  Such abuse and neglect include denial of 
access to “basic hygiene items” including “showe ring, brushing his teeth, clipping his nails, and 
… soap to wash himself” for “two months[.]”  ( Id. at ¶ 21).  He alleges this conduct constitutes 
“denial of the minimal civilized measure of life’s necessities,” and that he was never “provide[d] 
a written or verbal reason he was being denied the ability to clean himself” but rather that it “was 
done with deliberate indifference to  Plaintiffs’ health and safety … and with  the goal of having 
him commit suicide.”  ( Id. at ¶¶ 47–48).  He further alleges th at he received repeated threats of 
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rape, abuse, and murder as to both him and his family; was “constantly urged … to kill himself”; 
and experienced “constant and unrelenting” abuse, particularly by way of “second shift” staff.  (Id. 
at ¶¶ 23, 51).  After attempting to commit suicide due to the alleged torture, he was placed in a cell 
“covered in human feces,” “given another inmate’s medication causing him to suffer side effects,” 
and prevented from sleeping for days due to li ght and sound interruptions  by the “Defendant 
staff[.]”  (Id. at ¶ 27).  As a result, Plaintiff “has lost thirty pounds, suffered mental and emotional 
suffering[,] and was forced to live in unsafe, inhumane prison conditions.”  (Id. at ¶ 34). 
II. STANDARD OF REVIEW 
This Court may dismiss a cause  of action under Federal Rule  of Civil Procedure 12(b)(6) 
for “failure to state a claim upon which relief can be granted.”  Such a motion “is a test of the 
plaintiff's cause of action as stat ed in the complaint, not a challenge to the plaintiff's factual 
allegations.”  Golden v. City of Columbus , 404 F. 3d 950, 958–59 (6th Cir. 2005).  This Court 
cannot dismiss a complain t for failure to state a claim “unless it appe ars beyond doubt that the 
plaintiff can prove no set of facts in support of his claim which would entitle [her] to relief.”  Mayer 
v. Mylod, 988 F. 2d 635, 638 (6th Cir. 1993).  The Complaint should also be read as a whole, even 
if a specific alleged fact read in isolation appears meaningless.  Doe (R.A.) v. Best W. Int’l, Inc. , 
No. 2:23-cv-3459, 2024 WL 3850958, at *1 (S.D. Ohio Aug. 16, 2024) (quoting Ricchio v. 
McLean, 853 F.3d 553, 557 (1st Cir. 2017)). 
When a party objects to a magistrate judge’s report and recommendation, this Court must 
review “de novo any part of the magistrate judge’s disposition that has been properly objected to.” 
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(c).  After this review, the district judge 
“may accept, reject, or modify the recommended di sposition; receive further evidence; or return 
the matter to the magistrate judge with instructions.”  Fed. R. Civ. P. 72(b)(3). 
 
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III. LAW AND ANALYSIS 
A. Service on Defendants 
Plaintiff was first notified of his shortcomings in serving the Defendants in March of 2023, 
when the Magistrate Judge ordered him to show cause for said shortcomings.  (ECF No. 3).  
Plaintiff apologized for the delay, and indicated that he would file  the waivers as they came in.  
(ECF No. 4).  So, the Magistrate Judge rescinded the show cause order.  (ECF No. 6).  Waivers 
have since been executed for five of the ni ne Defendants—Chambers-Smith, Okereke, Grimm, 
Hanes, and Unit Manager Thompson—but this Cour t is without evidence that the other four—
Causey, Hammons, Thorpe, and Megan Thompson—have been properly served.  (ECF No. 22 at 
2 (citing ECF No. 14 at 5–6)).  Three of these Defendants—Causey, Hammons, and Thorpe—“are 
no longer employed with the Ohio Department of Rehabilitation and Correction.”  (ECF No. 14 at 
5).  Defendants raised this issue in their Motion to Dismiss, requesting that these four Defendants 
be dismissed.  (Id. at 5–6). 
In recommending that these four unserved Defendants be dismissed, the R&R explains that 
“Plaintiff has not shown good cause for his failure to serve” these Defendants.  (ECF No. 22 at 3).  
In absence of such a showing, the court has the discretion to e ither provide a plaintiff with 
additional time to effect service or dismiss the action without prejudice.  FED. R. CIV. P. 4(m).  The 
R&R further noted that Plaintiff has yet to provide any explanation for the lack of service on these 
four Defendants despite his awareness of the defect for well over a year. 
Plaintiff was advised of his rights to object to  the First R&R within fourteen days and of 
the rights they would waive by fail ing to do so. (ECF No. 22 at 4) .  But no objections have been 
filed, and the time for filing such  objections under Fed. R. Civ. P. 72(b) has expired.  This Court 
has reviewed the R&R and, finding the R&R to be correct in fact and law, this Court hereby 
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ADOPTS the First R&R (ECF No. 22).  As  such, the following Defendants are DISMISSED:  
Causey, Hammons, Thorpe, and Megan Thomps on.  Having dismissed four of the nine 
Defendants, this Court turns to the substance of Plaintiff’s claims against the five other Defendants:  
Chambers-Smith, Okereke, Grimm, Hanes, and Unit Manager Thompson. 
For this reason, to the extent Plaintiff alleged a claim of retaliation, this Court agrees with 
the Second R&R that Plaintiff’s only retaliation-related allegation discusses the actions of now-
dismissed Defendant Causey.  (See ECF No. 23 at 14–15).  The R&R is therefore ADOPTED on 
this issue. 
B. Respondeat Superior 
As to Defendants Okereke and Chambers-Smith, the Second R&R recommends that 
Plaintiff’s claims be dismissed as improper respondeat superior assertions because he fails to show 
that either was “personally involved, directly participate d, or ‘condoned, encouraged, or 
knowingly acquiesced in the alleged misconduct.’”  (ECF No. 22 at 6, 8).  In his objections, 
Plaintiff effectively concedes that the ODRC di rector, Chambers-Smith, cannot be held liable 
under § 1983 for the actions of the ODRC employees, but argues that the warden of CRC, Okereke, 
“should have known this was happening.”  (ECF No. 26 at 5). 
But Plaintiff does not provide sufficient factual allegations to impute onto Defendant 
Okereke any individual knowledge of or participation in the alleged constitutional violations.  See 
Taylor v. Michigan Dep’t of Corr., 69 F.3d 76, 80–81 (6th Cir. 1995).  Instead, he alleges that she 
was “responsible for the behavior and actions of his guards and staff during the time mentioned in 
the complaint.”  (ECF No. 1 at 8; see also ECF No. 1 at 14 (“The Ward en is responsible for the 
actions of his guards.”).  Combined with the co nclusory assertion that she “should have known” 
about the allegedly problematic behavior of the other Defendants, Plaintiff falls short of his burden 
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of establishing that Defendant Okereke herself, “through the official’s own individual actions, has 
violated the Constitution.”  Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).  So, as Plaintiff did not 
plead that Defendants Chambers-Smith and Ok ereke are “personally responsible for the 
unconstitutional actions which injured him,” the claims ag ainst them cannot proceed.  Cleare v. 
Jenkins, No. 2:15-CV-2295, 2017 WL 2537344, at *3 (S.D. Ohio June 12, 2017), report and 
recommendation adopted, No. 2:15-CV-2295, 2017 WL 2819878 (S.D. Ohio June 28, 2017), order 
reinstated, No. 2:15-CV-2295, 2017 WL 3314651 (S.D. Ohio Aug. 3, 2017). 
C. Eighth Amendment Claims 
As the rest of the Defendants have been dismissed, the remainder of this analysis relates 
only to Grimm, Hanes, Unit Manager Thompson, and John Doe Guards 1–10 (collectively, the 
“remaining Defendants”).  The R&R concluded that it “need not resolve whether the conditions of 
which plaintiff complains are sufficient to plead deliberate indifference under the Eighth 
Amendment” because “Plaintiff’s complaint is devoid of any individual allegations against 
remaining defendants Officer Grimm, Officer Hanes and Unit Manager Thompson under either of 
the two claims plaintiff asserts in his complaint[.]”  (ECF No. 23 at 10).  Plaintiff disagrees, arguing 
that his complaint provides “e nough facts to put the defendants on notice of what conduct [he] 
complains about.”  (ECF No. 26 at 6).  Plai ntiff points out the following defendant-specific 
allegations which, he alleges, “specifically st ates what they did and why it violates the 
Constitution[:] … 
 Defendant Grimm, ¶ 13, 19-31, Doc 1, Complaint  
 
 Defendant Hanes, ¶ 14, 19-31, Doc 1, Complaint  
 Defendant Thompson, ¶ 14, 19-31, Doc 1, Complaint[.]” 
 
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(ECF No. 26 at 5–6).  As an example, “Paragraph 23 of the complaint states with specificity that 
Grimm, Hanes, and Thompson participated in th e abuse and torture of the Plaintiff[.]”  ( Id. at 6 
(citing ECF No. 1 at 6)). 
As this Court explained in the context of re spondeat superior, a plaintiff must make out a 
“facial[ly] plausibility [claim] . . . [that] allows the court to draw the reasonable inference that the 
[each] defendant is liable for the misconduct alleged.”  Iqbal, 556 U.S. at 678 (citing Twombly, 
550 U.S. at 556).  Under § 1983, this requires showing that the defendant was personally involved 
in some manner in the allegedl y unconstitutional conduct.”  Johnson v. ODRC, No. 1:23-cv-39, 
2023 WL 4084830, at *4 (S.D. Ohio June 20, 2023), report and recommendation adopted, 2023 
WL 5275384 (S.D. Ohio Aug. 16, 2023). 
To determine whether Plaintiff sufficiently  connected the remain ing Defendants to the 
conduct that allegedly violated the Eighth Amendment, this Court starts by setting forth what said 
conduct includes.  Plaintiff attempts to raise a claim for depriva tion of hygienic conditions under 
the Eighth Amendment on the grounds that “[t]he prison officials denied him the ability to take a 
shower and wash himself[,] … the ability to brus h his teeth[,] … the ability to cut his toe and 
fingernails or shave … for two months.”  (ECF No. 1 at 12; see also ECF No. 1 at 5 (denial of 
soap)).  Plaintiff also alleges that, while he was on suicide watch, “[t]he cell … was covered in 
human feces,” he “was given another inmate’s me dication” which led to “s ide effects,” and that 
he was prevented from sleeping, as the Defendants kept the lights on and banged on his door.  (Id. 
at 7).  He further claims  that he was denied “humane conditi ons of confinement” by way of the 
“campaign of abuse and torture by guards and other staff,” including “threats to kill and rape” him, 
threats to his family, and encouragement to commit suicide.  ( Id. at 13–14).  Hence, Plaintiff’s 
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allegations are a far cry from “l abels and conclusions, [or] a form ulaic recitation of the elements 
of a cause of action[.]”  Twombly, 550 U.S. at 555.   
While some of Plaintiff’s factual allegations refer only to now-dismissed Defendants.  (See, 
e.g., ECF No. 1 at ¶¶ 22, 23, 25, 30, 31, 37), some expl icitly refer to Defe ndants still in this 
litigation (see id. at ¶ 23), and some are merely vague as  to who was responsible for the alleged 
conduct (see, e.g., id. at ¶¶ 21, 24, 27, 28, 29).  At the Rule 12( b)(6) stage, the court “must take 
care to read the complaint’s allegations ‘as a whole.’”  Sturgill v. Am. Red Cross , No. 24-1011, 
2024 WL 3886589 at *2 (6th Cir. Aug. 21, 2024) (quoting Matrixx Initiatives, Inc. v. Siracusano, 
563 U.S. 27, 47 (2011)).  And here, Plaintiff’s co mplaint as a whole repeatedly alleges that 
“defendants,” “staff,” “staff members,” “guards,” and “prison officials” committed the offenses 
described above.  (See, e.g., ECF No. 1 at ¶¶ 22, 24, 27, 39, 47, 48, 51).  This Court cannot conclude 
that such allegations are against “unidentified individuals[.]”  (ECF No. 23 at 11).  Given Plaintiff’s 
incarceration, this Court therefore disagrees with the R&R’s findings on this point, instead finding 
such assertions to allege sufficient personal in volvement to potentially implicate the remaining 
Defendants, including John Does 1–10, all of whom  are “staff,” “staff members,” “guards,” and 
“prison officials.” 
D. Next Steps 
As mentioned, the R&R did not evaluate the substance of most of Plaintiff’s Eighth 
Amendment claims.  ( See id. at 10).  For comity’s sake, this Court REMANDS this issue to the 
Magistrate Judge for consideration of the Ei ghth Amendment claims against all remaining 
Defendants, consistent with the above. 
On this point, there is a discovery issue lurking under the surface .  As the Second R&R 
notes, pursuant to the Court’s most recently amended calendar order, the discovery period closed 
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March 1, 2024.  (ECF No. 13).  While Plaintiff filed a document docketed as “Motion for Extension 
of Time to Complete Discovery” by June 1, 20 24, the Motion itself was a request to extend his 
response deadline for Defendants’ Motion to Dismiss.  (ECF No. 19 and its docket text; see ECF 
No. 23 at 7, 7 n.5).  Plaintiff does not appear to have realized that he has not asked for more 
discovery time, as he implied in his dismissal opposition that discovery was not yet complete and 
noted that he had requested a June 1, 2024 extension.  ( See ECF No. 21 at 3 (“Until discovery is 
complete …”); ECF No. 21 at 6 (noting that “Defendants have claimed that discovery has passed” 
but that Plaintiff has “requested until … June 1,  2024, for discovery to be complete.”)).  Albeit 
apparently inadvertent, this Court is without such a request, and the Magistrate Judge has indicated 
that “the discovery deadline has passed in this case” and that “[p]laintiff cannot use discovery to 
bridge the gap between a defici ent pleading and the possibility th at a claim might  survive upon 
further investigation.”  (E CF No. 23 at 7 (quoting Kovalchuk v. City of Decherd, Tennessee , 95 
F.4th 1035, 1041 (6th Cir. 2024)). 
The trial court has the power to sua sponte extend a discovery deadline. See, e.g., Myers v. 
City of Centerville , No. 3:20-cv-00402, 2023 WL 195427, at *1, *5 (S.D. Ohio Jan. 17, 2023), 
objections overruled , No. 3:20-cv-402, 2023 WL 3611459 (S.D . Ohio May 24, 2023).  And 
“[w]hether additional discovery is  appropriate is a question left  to the sound discretion of the 
district court,” Leapers, Inc. v. SMTS, LLC , 879 F.3d 731, 741 (6th Cir. 2018), such as at the 
summary judgment stage, Egerer v. Woodland Realty, Inc., 556 F.3d 415, 425–26 (6th Cir. 2009)).  
On appellate review, the Sixth Ci rcuit “has cited approvingly othe r circuits’ view  that ‘[a] ... 
motion requesting time for additio nal discovery should be granted almost as a matter of course 
unless the non-moving party has not diligently pursued discovery of the evidence.’”  Doe v. City 
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of Memphis, 928 F.3d 481, 490–91 (6th Cir. 2019) (quoting F.T.C. v. E.M.A. Nationwide, Inc., 767 
F.3d 611, 623 (6th Cir. 2014)). 
Given what appears to be a clerical error in  Plaintiff’s lack of a complete request for 
additional discovery and given that said discovery may be helpful to Plaintiff in better connecting 
his allegations to the remaining Defendants, this Court finds it appropriate to exercise its discretion 
to reopen the discovery period.  Accordingly, this Court ORDERS that the parties’ discovery 
deadline is set for NINETY (90) DAYS  from the date on which this Court adjudicates the 
substantive R&R resulting from this Court’s remand of this matter to the Magistrate Judge.  And 
accordingly, this Court ORDERS that the parties have until FOURTY-FIVE (45) DAYS  after 
discovery closes to file dispos itive motions.  That being said, barring exceptional circumstances, 
this Court will not consider any further discovery extensions. 
VI. CONCLUSION 
Based on the foregoing analysis, this Court ORDERS as follows: 
 The Magistrate Judge’s First R&R (ECF No. 22) is ADOPTED IN FULL, so the following 
Defendants are DISMISSED:  Causey, Hammons, Thorpe, and Megan Thompson. 
 Plaintiff’s Objections to the Magistrate  Judge’s Second R&R (ECF No. 26) are 
OVERRULED in part and SUSTAINED in part , and accordingly, the Second R&R 
(ECF No. 23) is ADOPTED in part and REJECTED in part .  Specifically, the Second 
R&R is ADOPTED as to its conclusions regardi ng Defendants Chambers-Smith and 
Okereke and Plaintiff’s retaliation claim—so these Defendants are DISMISSED—but 
REJECTED as to Plaintiff’s Eighth Amendment claims against the remaining Defendants. 
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This Court therefore further ORDERS as follows: 
 The Eighth Amendment issue is REMANDED to the Magistrate Judge for consideration 
of the Eighth Amendment claims against all remaining Defendants, consistent with the 
above; 
 Defendants’ Motion to Di smiss (ECF No. 14) is HELD IN ABEYANCE pending this 
Court’s adjudication of the substantive R&R resulting from this Court’s remand of this 
matter to the Magistrate Judge; 
 The parties’ discovery deadline is reset for NINETY (90) DAYS from the date on which 
this Court adjudicates the substantive R&R resulting from this Court’s remand of this 
matter to the Magistrate Judge; and 
 The parties have until FOURTY-FIVE (45) DAYS after discovery closes to file dispositive 
motions.   
IT IS SO ORDERED. 
             
      ALGENON L. MARBLEY 
CHIEF UNITED STATES DISTRICT JUDGE 
 
DATED: September 5, 2024 
  
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