United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM JUDGE.
REPORT AND RECOMMENDATION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
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.).
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
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”)).
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
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 ...