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Devore v. Mohr

United States District Court, S.D. Ohio, Eastern Division

May 26, 2017

JAMES DEVORE, Plaintiff,
v.
GARY MOHR, et al., Defendants.

          JAMES L. GRAHAM JUDGE.

          REPORT AND RECOMMENDATION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff James Devore, a pro se prisoner, filed a Motion for Leave to Proceed in forma pauperis on May 12, 2017. (Doc. 1). Pursuant to 28 U.S.C. § 1915(a), that Motion is GRANTED. All judicial officers who render services in this action shall do so as if the costs had been prepaid. However, as explained below, the Court concludes this action cannot proceed.

         Because Plaintiff is a prisoner seeking redress from the government, this Court must conduct an initial screening pursuant to 28 U.S.C. § 1915A(a). The Court must dismiss the Complaint if it determines that it is frivolous or 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); see Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“[T]he allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers....”); Thompson v. Kentucky, 812 F.2d 1408, No. 86-5765, 1987 WL 36634, at *1 (6th Cir. 1987) (“Although pro se complaints are to be construed liberally, they still must set forth a cognizable federal claim.” (citation omitted)). In order to survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Applying those standards here, the Undersigned RECOMMENDS DISMISSAL. (Doc. 1-2).

         I. BACKGROUND

         Plaintiff's claim arises from a dispute with fellow inmate Michael Avery on August 27, 2016 at Belmont Correctional Institution (“BeCI”). (Doc. 1-2 at ¶ 11). Plaintiff alleges that Mr. Avery stole some of his personal belongings, including coffee and sardines, so Plaintiff approached him in the TV room to ask for their return. (Id.). Plaintiff admits that he “was angry about the theft and demanded that the items be returned immediately.” (Id. at ¶ 12) An argument ensued. (Id.).

         According to Plaintiff's allegations, Mr. Avery picked up a metal and wooden chair, threw it at his head, and “abruptly started to leave the room.” (Id.). Plaintiff claims that his “hand was sliced open by one of the chair legs” when he blocked the chair from hitting him. (Id.). Plaintiff adds that “the chair was previously broken and was missing its foot, or caster, from the leg, leaving the square leg open and very sharp.” (Id.; see also id. (stating that the “chair was damaged and the poor maintenance made it a weapon”)). Plaintiff informed the Corrections Officer on duty that his hand needed medical attention. (Id. at ¶ 13). Consequently, Plaintiff was transported by ambulance to the local hospital. (Id.). After receiving seven stitches in his hand, Plaintiff returned to BeCI with his hand wrapped in bandages. (Id.).

         Plaintiff states that a few days later, he:

was called into [BeCI Unit Manager] Mr. Joseph Eberlin's office and he was questioned about what happened between him and inmate Avery. Plaintiff was intimidated by inmate Avery and was reluctant to “snitch” on another inmate because “snitches get[ ] stitches” prevented plaintiff from explaining that he was a victim of a theft and also a victim of assault. Plaintiff knew that it was risky and Eberlin told the plaintiff that he had already been informed about the fact that [he] had stitches in his hand and what had happened.

(Id. at ¶ 14). Plaintiff alleges that his refusal to share information angered his Unit Manager, Mr. Eberlin, so Mr. Eberlin wrote a conduct report. (Id. at ¶¶ 14-15). Plaintiff states that he signed “the electronic signature pad before [he] was able to read a printed copy of the report.” (Id. at ¶ 15).

         Plaintiff states that when he read the report, he discovered that Mr. Eberlin had incorrectly listed him as the aggressor, and he immediately told Mr. Eberlin the report was wrong. (Id.). Plaintiff asserts that Mr. Eberlin did not correct the report, had him arrested and sent to the “hole” for seven days, and conducted no further investigation despite Plaintiff's request for one. (Id. at ¶¶ 15-16). Plaintiff contends that his hand “was still bleeding and required daily dressing changes.” (Id. at ¶ 16; see also id. (describing his hand injury as “painful” and “slow to heal”)).

         It is Plaintiff's position that Mr. Eberlin “placed him in the ‘hole' as retaliation for not telling on the inmate, and putting himself at risk by becoming a snitch.” (Id.; see also id. (stating that “Inmate Avery had already attacked plaintiff once and plaintiff was afraid to tell on Avery”). Plaintiff admits that Mr. Eberlin interviewed at least one witness, but claims he falsified the conduct report when he reported that “inmate [George] Alexander … had stated that [P]laintiff and inmate Avery ‘struggled for control' of the chair, and that this was the cause of the laceration on Plaintiff's hand.” (Id.). Plaintiff further alleges that Mr. Eberlin falsely reported that he lied to security and medical staff about the cause of the injury and “eventually admitted to the altercation.” (Id.).

         Plaintiff filed an informal complaint against Mr. Eberlin for alleged falsification of “official paperwork by charging [P]laintiff with a violation of Rule 19: fighting-with or without weapons, including investigation of, or perpetuating fighting.” (Id. at ¶ 17). Plaintiff explains that he filed:

two separate Informal Complaint Resolution (ICR) forms, one on September 23, 2016 with Dave Taylor, Unit Manager Administrator, and one on September 27, 2016, with Deputy Warden of Operations. Both ICR's addressed not only the Conduct Report, but rather the fact that Joseph Eberlin had falsified ODRC paperwork, retaliated against the plaintiff by removing him from his housing assignment under the false premise that he was the aggressor in the fight. Plaintiff denied that he was involved in a ...

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