2:15-cv-01272
S.D. Ohio
Apr 17, 2015

JAMES SMITH, Plaintiff, v. STATE OF OHIO REHABILITATION AND CORRECTIONS, et al., Defendants.

Civil Action 2:15-cv-1272

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 17, 2015

Judge Gregory L. Frost; Magistrate Judge Elizabeth P. Deavers

ORDER and INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, James Smith, a state-inmate who is proceeding without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against the State of Ohio Rehabilitation and Corrections1 (“ODRC“), Madison Correctional Institution (“MCI“), and Correctional Officer Herren (“Herren“). Plaintiff alleges that Defendant Herren used excessive force against him in violation of his Eighth Amendment rights. This matter is before the Court for consideration of Plaintiff‘s Motion for Leave to Proceed in forma pauperis (ECF No. 1), which is GRANTED. Plaintiff is required to pay the full amount of the Court‘s $350 filing fee. 28 U.S.C. § 1915(b)(1).

Plaintiff‘s certified trust fund statement reveals that he currently possesses the sum of $15.03 in his prison account, which is insufficient to pay the full filing fee. His application indicates that his average monthly deposits for the six-month period prior to filing his application to proceed in forma pauperis were $18.00.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff‘s inmate trust account (Inmate Id # A497893) at MCI is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six-months immediately preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate‘s preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks should be sent to:

Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215

The prisoner‘s name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid.

The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison cashier‘s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court‘s financial office in Columbus.

This matter is also before the Court for the initial screen of Plaintiff‘s Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff‘s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow, the Undersigned RECOMMENDS that the Court DISMISS Defendants ODRC and MCI from this action. Plaintiff may proceed on his claims against Defendant Herren for excessive force at this juncture.

I.

Congress enacted 28 U.S.C. §§ 1915(e) and 1915A, the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.‘” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A (requiring the Court to screen a prisoner‘s complaint “as soon as practicable” and dismiss any portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, §§ 1915(e) and 1915A require 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.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Rule 8(a) of the Federal Rules of Civil Procedure. See Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. § 1915(e)(2)(B)(ii)). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,‘” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.‘” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.‘” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

In considering whether this facial plausibility standard is met, a Court must construe the complaint in the light most favorable to the non-moving party, accept all factual allegations as true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations omitted). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.

II.

The Undersigned concludes that Plaintiff has failed to state a claim upon which relief may be granted against Defendants ODRC and MCI. The Eleventh Amendment of the United States Constitution operates as a bar to federal-court jurisdiction when a private citizen sues a state or its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th Cir. 2000). “It is well established that § 1983 does not abrogate the Eleventh Amendment.” Harrison v. Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10, 2013) (citing Quern v. Jordan, 440 U.S. 332, 341 (1979)). ODRC is an instrumentality of the state of Ohio. Lowe v. Ohio Dep‘t of Rehab., No. 97-3971, 1998 WL 791817, at *2 (6th Cir. Nov. 4, 2008). MCI is also an instrumentality of the state of Ohio. Because Ohio has not waived its sovereign immunity in federal court, it is entitled to Eleventh Amendment immunity from suit for monetary damages. Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Further, neither ODRC nor MCI are “persons” who can be held liable under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Thus, dismissal pursuant to § 1915(e) of Plaintiff‘s claims against

ODRC and MCI is appropriate. See Wingo v. Tenn. Dept. of Corrs., 499 F. App‘x 453, 454 (6th Cir. 2012) (affirming trial court‘s dismissal of inmate‘s claims against state agency under § 1915(e), explaining that the department and the prison were entitled to Eleventh Amendment immunity); Harrison v. Michigan, 2013 WL 3455488 at *3 (same).

IV.

For the above reasons, pursuant to the Court‘s initial screen, it is RECOMMENDED that the Court DISMISS Defendants ODRC and MCI from this action. Plaintiff may proceed on his claims against Defendant Herren at this juncture. The United States Marshal is therefore DIRECTED to serve by certified mail upon Defendant Herren a summons, a copy of the Complaint, and a copy of this Order. Defendant Herren is ORDERED to answer or otherwise respond to the Amended Complaint within forty-five (45) days after being served with a copy of the Complaint and summons.

PROCEDURE ON OBJECTIONS

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, and the part in question, as well as the basis for objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b).

The parties are specifically advised that the 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 waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat‘l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge‘s recommendations constituted a waiver of [the defendant‘s] ability to appeal the district court‘s ruling“); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court‘s denial of pretrial motion by failing to timely object to magistrate judge‘s report and recommendation). Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objections to a magistrate judge‘s report, which fails to specify the issues of contention, does not suffice to preserve an issue for appeal . . . .“) (citation omitted)).

Date: April 17, 2015

/s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

United States Magistrate Judge

Notes

1
The correct name for Defendant is the Ohio Department of Rehabilitation and Correction. Formerly 28 U.S.C. § 1915(d).
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