Opinion
Civil Action 2:09-CV-904.
March 3, 2011
ORDER and REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brings this civil rights action under 42 U.S.C. § 1983, alleging violations of his due process rights in connection with the revocation of his parole. This matter is now before the Court on Defendants Volunteers of America and Lorene Rhodes' Motion for Summary Judgment, Doc. No. 45 (" Motion for Summary Judgment"). For the reasons that follow, the Magistrate Judge RECOMMENDS that this motion be GRANTED.
I. BACKGROUND
Defendant Volunteers of America ("VOA") is a non-profit organization that operates a corrections program, housing released and paroled criminal offenders. Affidavit of Carrie Benham-Daniel, ¶¶ 3-4, 16, attached as Exhibit A to Motion for Summary Judgment (" Benham-Daniel Aff."). On January 12, 2007, plaintiff was granted parole and released to VOA. Personal Affidavit of Kevin Tillman, ¶ 1, Doc. No. 55 (" Plaintiff Aff."). On January 24, 2007, while at the VOA, plaintiff met with defendant Lorene Rhodes, a VOA employee. Id. at ¶ 2; Benham-Daniel Aff., ¶ 11. During that meeting, plaintiff advised defendant Rhodes that plaintiff "was not doing well [and that] the plaintiff was hearing voices telling him to kill himself and someone because his medication was nolonger [sic] working." Plaintiff Aff., ¶ 2. Defendant Rhodes reported plaintiff's statements to her direct supervisor at VOA. Benham-Daniel Aff., ¶ 11. Her supervisor reported the incident to plaintiff's parole officer. Id. at ¶ 12.
Thereafter, a parole revocation hearing was held, during which plaintiff was represented by counsel. Plaintiff Aff., ¶ 4. Defendant Rhodes testified at the revocation hearing and, on cross-examination, conceded that "she may have misunderstood the plaintiff [sic] statement because plaintiff never made any attempt to harm her or anyone at the facility." Id. at ¶ 5. The VOA did not make any recommendation regarding plaintiff's re-incarceration and/or parole revocation. Benham-Daniel Aff., ¶ 13. Plaintiff's parole was revoked. Complaint, p. 4, Doc. No. 4.
After their motion to dismiss was denied, Opinion and Order, Doc. No. 25, the VOA and defendant Rhodes (collectively, "the VOA defendants") filed the Motion for Summary Judgment. Plaintiff opposes the motion and the VOA defendants have filed a reply memorandum, Doc. No. 56 (" Reply"). Accordingly, this matter is now ripe for resolution.
After receiving permission from the Court, Order, Doc. No. 48, plaintiff supplemented his opposition to the Motion for Summary Judgment, Doc. Nos. 47, 54 and 55.
II. STANDARD
The standard for summary judgment is well established. This standard is found in Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251.
The party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Catrett, 477 U.S. at 323. Once the moving party has met its initial burden, the burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quoting former Fed.R.Civ.P. 56(e)); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995) ("nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial"). "Once the burden of production has so shifted, the party opposing summary judgment cannot rest on the pleadings or merely reassert the previous allegations. It is not sufficient to `simply show that there is some metaphysical doubt as to the material facts.'" Glover v. Speedway Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-moving party must support the assertion that a fact is genuinely disputed. Fed.R.Civ.P. 56(c)(1).
In ruling on a motion for summary judgment "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Glover, 284 F.Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)). Instead, a "court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties." Id. See also Fed.R.Civ.P. 56(c)(3).
III. DISCUSSION
A. Request for Discovery Pursuant to Fed.R.Civ.P. 56(d)
At the end of his supplemental brief opposing the Motion for Summary Judgment, plaintiff contends that "[t]he following discovery documentation is in the possession of the defendants and without the evidentiary documents the plaintiff would be unable to support his claims as followed[,] [sic]" and lists several categories of documents that he seeks from the VOA defendants. Plaintiff Supplemental Response to Defendants (VOA) and Lorene Rhodes Motino for Summary Judgment Fed. Civ. R. P. 56(e)(f), Doc. No. 54, p. 13 (" Supplemental Response"). See also Plaintiff Aff., ¶ 26.
By earlier orders of the Court, all discovery was to have been completed by September 30, 2010. Order, Doc. No. 26. Although not captioned as such, the Court construes plaintiff's request for certain documents to be a request for discovery pursuant to Fed.R.Civ.P. 56(d). This Court has previously denied a similar request by plaintiff. Order, Doc. No. 48. For the reasons that follow, plaintiff's current request is likewise unavailing.
The Federal Rules of Civil Procedure were amended on December 1, 2010. As a result of these amendments, subsection (f) of Rule 56 was reordered and is now subsection (d). This reordering does not currently have any impact on the applicability of precedent addressing former Rule 56(f) to a Rule 56(d) analysis.
Rule 56(d) establishes the proper procedure where a party concludes that additional discovery is necessary in order to respond to a motion for summary judgment:
When Affidavits Are Unavailable. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Fed.R.Civ.P. 56(d). The affidavit required by the rule must "indicate to the district court [the party's] need for discovery, what material facts it hopes to uncover, and why it has not previously discovered the information." Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing Radich v. Goode, 866 F.2d 1391, 1393-94 (3d Cir. 1989)). A motion under Rule 56(d) may be properly denied where the requesting party "makes only general and conclusory statements regarding the need for more discovery and does not show how an extension of time would have allowed information related to the truth or falsity of the [document] to be discovered," Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (citing Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the affidavit "lacks `any details' or `specificity.'" Id. (quoting Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)). See also Cardinal v. Metrish, 564 F.3d 794, 797-98 (6th Cir. 2009) ("If the plaintiff makes only general and conclusory statements in his affidavit regarding the needed discovery, lacks any details or specificity, it is not an abuse of discretion for the district court to deny the request.").
Plaintiff's present request is defective in at least two ways. His affidavit fails to identify "what material facts [he] hopes to uncover, and why [he] has not previously discovered the information." See Cacevic, 226 F.3d at 488. There is no evidence before the Court to indicate that plaintiff requested this information of defendants before the close of discovery. In addition, plaintiff has not explained how any information contained in the requested documents would overcome the Motion for Summary Judgment. Indeed, even if plaintiff did obtain the requested documents, it is not immediately apparent to the Court that they contain any information that would impact the Court's analysis discussed infra. Accordingly, plaintiff's request for unspecified additional time to conduct discovery in order to respond to the VOA defendants' Motion for Summary Judgment is DENIED.
Notwithstanding plaintiff's concession that he is "unable to support his claims" without additional discovery, the Court will proceed to analyze whether plaintiff's claims survive the Motion for Summary Judgment.
B. Plaintiff's Claims Related to Revocation of His Parole
Plaintiff alleges violations of his rights in connection with the revocation of his parole, seeking relief under 42 U.S.C. § 1983. That statute states: "[e]very person who, under color of any statute, ordinance, regulation, custom or usage of any state . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws" shall be liable to the injured party. This statute "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). In order to recover under § 1983, a plaintiff must prove that the defendant, while acting under color of state law, violated rights secured by the Constitution or laws of the United States. See Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970).
1. State Action
Plaintiff alleges that his rights were violated by the VOA defendants because (1) defendant Rhodes acted with deliberate indifference to plaintiff's serious medical needs, and (2) the VOA failed to train its individual employees, including defendant Rhodes, to care for mentally ill parolees. See, e.g., Complaint, pp. 3-4; Supplemental Response, pp. 3-4, 9, 11-12. As an initial matter, it is not apparent that plaintiff has established the first requirement of a § 1983 action, i.e., that the VOA defendants were "acting under color of state law." It is undisputed that the VOA is a private, non-profit organization. Benham-Daniel Aff., ¶ 3. Whether or not a private entity acts under color of state law is a question of law. See, e.g., Neuns v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). "A private party's actions constitute state action under section 1983 where those actions may be `fairly attributable to the state.'" Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) ( en banc) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 947 (1982)). "The [United States] Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test." Id. (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)).
In the case sub judice, plaintiff generally argues that the VOA defendants are state actors because VOA is in "joint action with DRC" because the Ohio Department of Rehabilitation and Correction ("ODRC") purportedly provides monetary assistance to and has a contract with the VOA. Supplemental Response, pp. 5-8, 10, 12 (citing, inter alia, O.R.C. §§ 5120.103, 5120.112). Even if the Court were to assume that plaintiff's conclusory allegations are true, i.e., that the ODRC purchased services from the VOA, giving money to it pursuant to a contract, plaintiff still has not met any of the three tests for determining state action. Plaintiff has offered no evidence that the state "exercise[d] such coercive power or provide such significant encouragement" over the VOA defendants so as to satisfy the state compulsion test. S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553, 565 (6th Cir. 2007). For example, the ODRC does not control or conduct the VOA's day-to-day activities and the VOA has discretion to determine what residents it accepts into its program. Benham-Daniel Aff., ¶¶ 15-16. The record also establishes that defendant Rhodes reported plaintiff's conduct in accordance with VOA policy, which requires that violations of major rules, including threatening behavior, be reported to a parole officer and/or the police. Id. at ¶¶ 10-12, 17. Therefore, defendant Rhodes was following VOA policy — not an ODRC mandate — when she reported plaintiff. In addition, the VOA defendants made no recommendation whatsoever as to the outcome of plaintiff's parole revocation proceeding. Id. at ¶¶ 11, 13. Even if they had, however, the VOA has no authority to (1) control the conduct of parole officers, or (2) direct the decisions made by the Parole Board, including the revocation of parole. Id. at ¶¶ 6-8. Based on the present record, the Court is not persuaded that plaintiff has met the state compulsion test.
Similarly, there is insufficient evidence to conclude that plaintiff has met the public function test, which finds "`state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State.'" Lindsey v. Detroit Entm't, LLC, 484 F.3d 824, 828 (6th Cir. 2007) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)). "The Supreme Court has found this requirement satisfied where the state permitted a private entity to hold elections, . . . allowed a private company to own a town, . . . or established private ownership of a municipal park." Id. (internal citations omitted). The uncontroverted record establishes that the VOA houses released and paroled criminal offenders and assists ex-offenders. Benham-Daniel Aff., ¶ 4. Plaintiff does not allege or offer any historical evidence that this service is a function traditionally and exclusively reserved to the state. Under these particular circumstances, the Court cannot say that plaintiff has met the public function test and established state action. Cf. Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir. 2003) (finding that the public function test was not met where, inter alia, the plaintiff "failed to provide any historical argument or analysis").
Finally, plaintiff has not offered evidence sufficient to meet the nexus test, which is satisfied "where `there is a sufficiently close nexus between the State and the challenged action of the regulated entity[,] . . . the action of the latter may be fairly treated as that of the State itself.'" Paige v. Coyner, 614 F.3d 273, 278 (6th Cir. 2010) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Even assuming that the VOA receives funding from the state, "[t]he actions of a private entity do not become state action merely because the government provides substantial funding to the private party." Crowder v. Conlan, 740 F.2d 447, 450 (6th Cir. 1984). See also Wolotsky, 960 F.2d at 1335. Likewise, even if the VOA has or had a contract with the state, "[t]he mere existence of a contract between a governmental agency and a private party is insufficient to create state action." Simescu v. Emmet County Dep't of Social Services, 942 F.2d 372, 375 (6th Cir. 1991). In addition, although the VOA must follow certain ODRC guidelines, Benham-Daniel Aff., ¶ 14, this fact alone does not satisfy the nexus test. See Wolotsky, 960 F.2d at 1335 ("Merely because a business is subject to state regulation does not by itself convert its action into state action.").
Instead, plaintiff has the burden of establishing that "the state is intimately involved in the challenged private conduct in order for that conduct to be attributed to the state for purposes of section 1983." Wolotsky, 960 F.2d at 1335. The record discussed supra makes clear that the VOA has discretion to operate its own program, that the VOA defendants did not provide any recommendation regarding plaintiff's re-incarceration or parole revocation and establishes that defendant Rhodes was following VOA policy — not ODRC instructions — when she reported plaintiff's conduct. Accordingly, after considering all the evidence of record, the Court cannot conclude under these circumstances that the VOA defendants were acting under color of state law when they reported plaintiff's threatening behavior to his parole officer.
Other courts have concluded that the VOA is not a state actor in other contexts. See, e.g., Fenton v. Volunteers of America, No. CV-10-96, 2010 U.S. Dist. LEXIS 83578, at *3-4 (D. Mont. Aug. 16, 2010); Tyus v. Kentucky Dep't of Veterans Affairs, No. 5:07-162, 2008 U.S. Dist. LEXIS 62600, at *5-9 (E.D. Ky. Aug. 14, 2008); Bassomb v. Volunteers of America, No. 05 Civ 7629, 2007 U.S. Dist. LEXIS 17364, at *8-10 (S.D. N.Y. Mar. 12, 2007).
2. Deprivation of Rights Secured by Federal Law
However, even if plaintiff could establish state action, the Court finds that his claims would nevertheless fail because he cannot demonstrate that he was deprived of rights secured by federal law. Plaintiff specifically alleges that his rights were violated when (1) defendant Rhodes acted with deliberate indifference to plaintiff's serious medical needs, and (2) the VOA failed to train its individual employees, including defendant Rhodes, to care for mentally ill parolees. The Court will address each defendant in turn.
a. Defendant Rhodes
As discussed supra, plaintiff told defendant Rhodes that he was hearing voices telling him to kill himself and/or someone else because his medication was no longer working. Plaintiff contends that defendant Rhodes acted with deliberate indifference to his serious medical needs when she "made no attempt to get the plaintiff to a hospital or to a Physiatrist [sic] or physiology for help" and instead "allow[ed] the plaintiff to be arrest[ed] and taken to Richland County Jail[.]" Supplemental Response, p. 3.
The United States Supreme Court has held that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. . . ." Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). "A constitutional claim for deliberate indifference to serious medical needs requires a showing of objective and subjective components." Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir. 2008). A plaintiff must show the existence of a "sufficiently serious medical need to satisfy the objective component." Id. The Sixth Circuit has explained that a condition is "sufficiently serious" when the need for medical care is obvious to even a lay person. Blackmore v. Kalamazoo County, 390 F.3d 890, 899-900 (6th Cir. 2004). "To satisfy the subjective component, the plaintiff must 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). The requisite state of mind "entails something more than mere negligence" but "less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S. 825, 835 (1994).
Although plaintiff was on parole at the time of the incident, and not an incarcerated prisoner, this analysis nevertheless applies to him. See, e.g., Giddings v. John Coleman Ctr., Nos. 07-1736 07-2407, 278 Fed. App'x 131 (3d Cir. May 19, 2008) (analyzing claim of plaintiff, a parolee with a history of mental illness, who asserted that defendants were deliberately indifferent to a serious medical need).
Not every claimed denial of adequate treatment constitutes a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. The Sixth Circuit distinguishes "between cases where a complaint alleges a complete denial of medical care and those cases where the claim is that the prisoner received inadequate medical treatment." Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). Where a prisoner has received some medical attention and the dispute is over the adequacy of treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that actually sound in state tort law. Id.
In this case, the VOA defendants move for summary judgment on the basis that there is insufficient evidence to support plaintiff's claim against defendant Rhodes. This Court agrees. Plaintiff's own affidavit establishes that, upon hearing plaintiff threaten to harm himself or someone else because his medication was not working, she told him to stay in her office; after she returned, plaintiff was arrested. Plaintiff Aff., ¶¶ 2-3. Rather than disregarding the substantial risk that plaintiff might harm himself (or someone else), defendant Rhodes took steps to assure that such a risk was addressed and removed. Specifically, defendant Rhodes's actions ensured that plaintiff would not be harmed because he was taken into custody. Therefore, far from establishing deliberate indifference, plaintiff's own affidavit establishes that defendant Rhodes was not deliberately indifferent to plaintiff's condition.
Plaintiff complains that (1) defendant Rhodes and/or the VOA arranged for mental health care in a separate county, Plaintiff Aff., ¶¶ 15-16, and (2) that defendant Rhodes should have arranged for psychiatric care at time of plaintiff's threat. However, these complaints do not change this Court's analysis. At best, plaintiff's assertion amounts to nothing more than a disagreement over the adequacy of his care, which is insufficient to create a genuine issue of material fact with respect to the subjective element. Cf. Westlake, 537 F.2d at 860 n. 5. Because he cannot meet the subjective prong, plaintiff cannot establish that defendant Rhodes acted with deliberate indifference. See Phillips, 534 F.3d at 539 (requiring that a plaintiff establish both the subjective and objective prongs of deliberate indifference).
b. VOA
Plaintiff alleges that the VOA violated his rights by failing to train its individual employees, including defendant Rhodes, to care for mentally ill parolees. "To succeed on a failure to train or supervise claim, the plaintiff must prove the following: (1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was the result of the [employer's] deliberate indifference; and (3) the inadequacy was closely related to or actually caused the injury." Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006).
However, a claim based on an employer's failure to train an employee may be actionable only if it is established that the employee actually violated the plaintiff's constitutional rights. See, e.g., Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001). "Thus, if the agents . . . violated no constitutional right, the [employer] can never be liable under § 1983 for a failure to train." Id. In this case, because plaintiff has not shown that defendant Rhodes violated his constitutional rights, "there can be no § 1983 liability on the part of [the VOA defendants] as a matter of law." Weeks v. Portage County Exec. Offices, 235 F.3d 275, 279 (6th Cir. 2000). Therefore, plaintiff's failure to train claim against the VOA must fail.
In sum, plaintiff's Rule 56(d) request to conduct additional discovery in order to respond to the Motion for Summary Judgment is DENIED. It is RECOMMENDED that Defendants Volunteers of America and Lorene Rhodes' Motion for Summary Judgment, Doc. No. 45, 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); F.R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. F.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 Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
March 3, 2011