United States District Court, N.D. Ohio, Eastern Division
Patrick L. Weaver, Plaintiff
The Ohio Department of Rehabilitation and Correction, et al., Defendants
SOLOMON OLIVER, JR.
MEMORANDUM OF OPINION AND ORDER
SOLOMON OLIVER, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT.
se plaintiff Patrick L. Weaver, a state prisoner
currently incarcerated in the Mansfield Correctional
Institution (MCI), has filed this in forma pauperis
civil rights damages action against the Ohio Department of
Rehabilitation and Correction (ODRC) and MCI Corrections
Officer K. Shepard. (Doc. No. 1.) In his complaint, he
alleges that his constitutional rights under the Eighth
Amendment were violated in connection with an incident that
occurred on December 1, 2016. He alleges Officer Shepard
became highly upset with him after he indicated he was
sleeping on the floor of his cell and did not want to eat
dinner. Officer Shepard allegedly entered the plaintiff's
cell and kicked the plaintiff in his torso, injuring his back
and ribs. The plaintiff became angry, covered the door to his
room with a blanket, and a “tug of war” with the
blanket ensued. Officer Shepard told the plaintiff,
“I'll show your ass, ” and shut off all of
the running water to the plaintiff's cell and emptied two
full bottles of O.C. spray into it, causing the plaintiff to
gasp for air and his skin to burn. (Id. at 5.) The
plaintiff's requests for medical attention were ignored.
He was left in his cell without water, suffering severe burns
on his skin and an inability to breathe. After he pleaded for
officers to turn the water in his cell back on, an officer
responded, “you should never have been talking
shit.” (Id. at 6.)
April 10, 2017, the plaintiff filed a motion to amend his
complaint to allege that the “Ohio Dept. of Rehab &
Corrections/Mansfield Corr. Institution's Investigator
has failed to investigate the guards or incident.”
(Doc. No. 3.) That motion is granted.
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam); Haines v. Kerner, 404 U.S. 519, 520
(1972), federal district courts are required, under 28 U.S.C.
§§1915(e) and 1915A, to review all in forma
pauperis actions and actions in which a prisoner seeks
redress from a governmental entity or employee, and to
dismiss before service any such action - or portion of it -
that the court determines is frivolous or malicious, fails to
state a claim on which relief can be granted, or seeks
monetary relief from a defendant who is immune from such
relief. See Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010).
review, the Court finds that the plaintiff's complaint
must be dismissed against the ODRC but that the action may
proceed against Officer Shepard.
prison officials may be required to use force to ensure
prison security, they may violate the Eighth Amendment's
proscription against cruel and unusual punishment if the
force used amounts to an “unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429
U.S. 97, 103 (1976). The core judicial inquiry when a prison
official stands accused of using excessive force in violation
of the Eighth Amendment is whether the force was applied in a
good-faith effort to maintain or restore order, or
maliciously and sadistically to cause harm. See, e.g.,
Hudson v McMillian, 503 U.S. 1 (1992). Viewing the
complaint at this juncture as the Court must in the light
most favorable to the plaintiff, the Court cannot conclude
that the plaintiff may not have a plausible claim against
Officer Shepard; therefore, the action may proceed against
plaintiff's complaint, however, fails to state a
plausible claim and must be dismissed against the ODRC. The
Eleventh Amendment prohibits a federal court from hearing a
claim against a state unless Congress has explicitly
abrogated a state's immunity or the state itself has
consented to suit. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 65-66 (1989). ODRC is an arm of the
state and may not be sued for damages under §1983.
See id.; Foulks v. Ohio Dept. of Rehabilitation
and Correction, 713 F.2d 1229, 1232 (6th Cir. 1993);
Danford v. Ohio Dep't of Rehab. & Corr., No.
2:10-CV-124, 2011 WL 245588, at *2 (S.D. Ohio Jan. 25, 2011)
(“The ODRC is an agency of the State of Ohio. Neither
the ODRC nor the State of Ohio have waived their sovereign
immunity to suit in this court.”).
plaintiff's allegations in his motion to amend are
insufficient to allege a plausible claim. See Truss-El v.
Bradley, 80 F.App'x 425, 426 (6th Cir. 2003)
(finding allegations that supervisory prison officials failed
to prevent an assault on an inmate, and failed to investigate
the inmate's grievances, insufficient to state a
for the reasons stated above, the plaintiff's complaint
is dismissed against the ODRC pursuant to 28 U.S.C.
§§1915(e)(2)(B) and 1915A. This action shall
proceed solely as against Officer Shepard. The Court
certifies, pursuant to 28 U.S.C. ...