United States District Court, E.D. Kentucky, Northern Division, Ashland
RECOMMENDED DISPOSITION 
ROBERT E. WIER, Magistrate Judge.
The Court considers Defendants' motion for dismissal or, alternatively, for summary judgment. DE #33 (Motion). After Defendants filed their motion, pro se  Plaintiff tendered an ambiguous, 1-sentence letter to the Court, which the Court construed as an offer of evidence or support for Plaintiff's claims, perhaps in response to Defendants' motion. DE #36 (Order); DE #34 (Letter). Defendants subsequently replied, contending that Plaintiff's letter is hearsay and conclusory. DE #37 (Reply).
The Court RECOMMENDS that the District Court CONSTRUE Defendants' motion to dismiss (DE #33) as a motion for judgment on the pleadings, GRANT Defendants' motion for judgment on the pleadings as to Lyons's claims for verbal abuse and officer intimidation (DE #33) and DISMISS those claims WITH PREJUDICE, and DENY Defendants' motion for judgment on the pleadings as to Lyons's allegation that Hanshaw ordered another inmate to attack him (DE #33). However, the Court further RECOMMENDS GRANTING Defendants' motion for summary judgment on such claim against Hanshaw and DISMISSING the claim WITHOUT PREJUDICE for failure to exhaust (DE #33). On this record, judgment as a matter of law is appropriate as to all claims, though for substantively and procedurally different reasons.
I. Relevant Factual and Procedural Background
On December 3,  2012, Plaintiff, Shane Lyons, filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the Boyd County Detention Center; Jeremy Hanshaw and Joe Burchett, deputy jailers at the Boyd County Detention Center. DE #1 (Complaint). Following a preliminary review of the Complaint, District Judge Wilhoit dismissed all claims against the Boyd County Detention Center and directed service on Defendants Hanshaw and Burchett. DE #8 (Order) at 1-2. Defendants Hanshaw and Burchett answered on February 8, 2013. DE #16 (Answer).
In the scattershot and, at times, illegible Complaint, Plaintiff alleges that Defendants intimidated him, verbally abused him, and (as to Hanshaw) ordered other inmates to inflict bodily harm on him. DE #1 (Complaint). Plaintiff does not label his constitutional claims. Lyons indicates that, at the time of filing, he was a pretrial detainee, id. at 1 (indicating pretrial detainee status), and the Court thus construes the claims as arising under the Fourteenth Amendment's due process protection against cruel and unusual punishment. Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003). Lyons presents his claims in narrative fashion. The Court surmises that, at some point in late summer or early fall of 2012, Lyons was booked into the Boyd County Detention Center. DE #1 (Complaint) at 7. Plaintiff generally complains about his treatment on that date, including being "forced to stay hours outside in the rec yard'" and having to "eat off the ground." Id. at 7. At some point, officers took Plaintiff to King's Daughters hospital for medical attention based on Plaintiff's self-reported claim of either lung cancer or TB. Id. Lyons alleges that, during his stay at the hospital, Hanshaw violated doctor's orders to official capacity. Northcott v. Plunkett, 42 Fed.App'x 795, 796 (6th Cir. 2002) (citing Wells ). Courts construe official capacity claims brought against an official of a governmental entity as brought against the governmental entity itself. Will v. Mich. Dep't of State Police, 109 S.Ct. 2304, 2312 (1989). However, jails are not "persons" subject to suit under § 1983. Marbry v. Correctional Med. Serv., 238 F.3d 422 (6th Cir. 2000). Thus, while a court can construe a claim against a jail as against the county itself, as Judge Wilhoit noted, absent any allegations that Boyd County or any of its policies are implicated in Plaintiff's Complaint, such claims are subject to dismissal for failure to state a claim. DE #8 (Order) (citing Marbry ). Here, however, in light of Defendants' treatment of the issue, the Court does not rely on capacity and any potential immunity in resolving Plaintiff's claims and does not address the issue further. remain outside the room, engaged in personal conversation, and made "derogatory comments" that Lyons found offensive. Id.
The precise timeline of events is unclear, but ultimately the hospital released Lyons and he returned to the Boyd County Detention Center. Plaintiff contends that on or about October 27, Hanshaw entered Lyons's cell and ordered Lyons to take his medication. When Lyons refused, Hanshaw forcibly removed Lyons from his cell and took him to "D-block, " where Hansahw allegedly threatened Lyons and stated that Hanshaw "could not wait to have [Lyons] ass raped." Id. at 8. Plaintiff further alleges that, between October 27 and November 11, Hanshaw subjected Lyons to general negative comments and covered up Lyons's cell window to obstruct his view. To the extent Lyons attempts to describe a conversation between Hanshaw and another inmate, Cris Woodle, about an alleged plot to inflict harm upon Lyons, such statements are illegible due to poor photocopy quality. See id. at 8-9.
The critical factual allegations appear in Lyons's depiction of November 11 and November 14. Lyons contends that, while he was alone in the recreation yard on November 11, Hanshaw ordered guards to release inmates from cell 138 into the yard. Id. at 3. As inmate Cris Woodle entered the recreation area, Hanshaw allegedly spoke to Woodle. Lyons asserts that, following this conversation, Woodle approached Lyons and stated, "Why you fucking with my homeboy Hanshaw?" Woodle then supposedly warned Lyons to "get ready to fight because he [Woodle] was about to blast [Lyons]." Woodle began to fight, hitting Lyons in his ribs, lip, and kidney area. Id. Lyons further contends that, following the fight, Woodle threatened to kill Lyons if he gave Hanshaw any further problems. Id. Plaintiff indicates that he reported the incident to Captain Guzman, although Guzman allegedly advised that, due to a lack of audio to pair with yard video, there was "no since [ sic ] in pursuing" the matter.
Finally, Lyons alleges that, on November 14, Burchett entered Lyons's cell with mace and questioned Lyons about a scratched tray. Id. at 5. When Lyons denied knowledge of the incident, Burchett allegedly "aggressively" repeated, "What, you wanna suck my dick?" Lyons further cites various derogatory comments by Burchett. Additionally, Lyons indicates that inmate Jose Sabino told Lyons that Hanshaw also ordered Sabino to inflict harm on Lyons. Id. Lyons does not claim any physical altercation with Sabino.
Lyons filed the instant Complaint on December 3, 2012. DE #1 (Complaint). Following initial screening and a discovery period, Defendants filed the instant motion on September 12, 2013, (DE #33) and Plaintiff sent in a 1-sentence letter on September 25, 2013. DE #34 (Letter). This was Lyons's only even arguable response to the dispositive motion. Defendants subsequently replied. DE #37 (Reply). Defendants' motion is ripe for analysis.
II. Standards of Review
Although styled as a motion to dismiss, and substantively characterized as a motion to dismiss for failure to state a claim, the Court notes that Defendants filed their motion after answering Plaintiff's Complaint. DE #33 (September 12, 2013 Motion to Dismiss); DE #16 (February 8, 2013 Answer). Thus, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) would be untimely. McGlone v. Bell, 681 F.3d 718, 728 n.2 (6th Cir. 2012) ("Defendants filed an untimely motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), as it was filed after Defendants' Answer."). Federal Rule of Civil Procedure 12(h)(2)(B) allows, in relevant part, a party to raise a failure to state a claim "by a motion under Rule 12(c), " or a motion for judgment on the pleadings. Fed.R.Civ.P. 12(h)(2)(B). The Court, in its discretion, thus construes Defendants' motion to dismiss as a motion for judgment on the pleadings. Satkowiak v. Bay County Sheriff's Dept., 47 Fed.App'x 376, 377 n.1 (6th Cir. 2002) (describing as a "technical error" defendant's labeling of an untimely Rule 12(b)(6) motion as a motion to dismiss and noting that the motion should be labeled as one arising under Rule 12(c)). The Court's treatment of the motion in this regard does not affect the standard of review. Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008) ("The manner of review under [Fed. R. Civ. P.] 12(c) is the same as a review under Rule 12(b)(6)[.]").
Federal Rule of Civil Procure 12(c) permits a party to file for judgment on the pleadings "[a]fter the pleadings are closed-but early enough not to delay trial." Fed.R.Civ.P. 12(c). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.'" Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)). Accordingly, a court may only grant the motion when "no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.'" Id. (quoting JPMorgan Chase Bank, N.A., 510 F.3d at 582).
Courts may not consider "matters outside the pleadings" when evaluating a Rule 12(c) motion. Fed.R.Civ.P. 12(d). "If... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Id. Additionally, a court must permit the parties "a ...