United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
a prisoner at the Southern Ohio Correctional Facility (SOCF),
has filed a pro se civil rights complaint against defendants
Ohio Department of Rehabilitation and Correction (ODRC), Jane
Doe (Medical Supervisor), Jane Doe (Mental Health
Supervisor), John Doe (PREA Coordinator/Program
Administrator), and John Doe (Psychiatrist). (Doc. 1-1,
Complaint at PagelD 13). By separate Order, plaintiff has
been granted leave to proceed in forma pauperis.
This matter is before the Court for a, sua sponte
review of the complaint to determine whether the complaint or
any portion of it, should be dismissed because it 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. See Prison
Litigation Reform Act of 1995 § 804, 28 U.S.C. §
1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
enacting the original in forma pauperis statute,
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."
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C.
§§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint
maybe dismissed as frivolous when the plaintiff cannot make
any claim with a rational or arguable basis in fact or law.
Neitzke v. Williams, 490 U.S. 319, 328-29 (1989);
see also Lawler v. Marshall, 898 F.2d 1196, 1198
(6th Cir. 1990). An action has no arguable legal basis when
the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or rise to
the level of the irrational or "wholly incredible/'
Denton, 504 U.S. at 32; Lawler, 898 F.2d at
1199. The Court need not accept as true factual allegations
that are "fantastic or delusional" in reviewing a
complaint for frivolousness. Hill v. Lappin, 630
F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490
U.S. at 328).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. §§1915 (e)(2)(B)(ii) and
1915A(b)(1). A complaint filed by a pro se plaintiff
must be "liberally construed" and "held to
less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). By the same token, however, the
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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also
Hill, 630 F.3d at 470-71 ("dismissal standard
articulated in Iqbal and Twombly governs
dismissals for failure to state a claim" under
§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well- pleaded factual allegations as true, but need not
"accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain "detailed factual
allegations, " it must provide "more than an
accusation." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
"labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. at 557. The complaint must
"give the defendant fair notice of what the .. . claim
is and the grounds upon which it rests."
Erickson, 551 U.S. at 93 (citations omitted).
complaint, plaintiff claims that defendants have violated his
constitutional rights by failing to provide him with hormone
therapy and sex reassignment surgery to treat his condition
of gender dysphoria. (Doc. 1-1, Complaint at PagelD 14).
Plaintiff seeks injunctive and monetary relief. (Id.
at PagelD 17).
juncture in the proceedings, without the benefit of briefing
by the parties to this action, the undersigned concludes that
plaintiff should be permitted to proceed with the claims
asserted in the complaint with the exception of his claims
against the ODRC, which should be dismissed for failure to
state a claim upon which relief may be granted. See
28 U.S.C. §§ 1915(e)(2)(B) &1915A(b).
42 U.S.C. § 1983 provides that "[e]very person who,
under the color of any statute . . . subjects, or causes to
be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured . . ., " 42 U.S.C. § 1983. A correctional
facility is not a "person" subject to suit under 42
U.S.C. § 1983. See Parker v. Michigan Dept. of
Corrections, 65 F.App'x. 922, 923 (6th Cir.2003)
(Department of Corrections not a "person" under
§ 1983). Therefore, plaintiffs claims against the ODRC
should be dismissed.
in sum, plaintiff may proceed against the unknown John and
Jane Doe defendants. Having found that plaintiff has failed
to state a claim against the ODRC, this defendant should be
dismissed as a party to this action.
plaintiff names all defendants by John or Jane Doe
descriptions, plaintiff identifies Mr. Chuck Smith, the
Program Administrator and PREA Supervisor, and Mrs. Salyers,
the Mental Health Supervisor/Director, in the body of the
complaint. (Doc. 1-1 Complaint at PagelD 15). However,
plaintiff has failed to provide service copies, summons
forms, and United States Marshal forms so that these
defendants may be issued service.
is therefore ORDERED to submit a copy of his complaint, a
summons form, and a United States Marshal form for defendants
Mr. Chuck Smith and Mrs. Salyers within thirty (30) days of
the date of this Order. Plaintiffs complaint also includes
allegations against "Dr. Ro gers (Mental Health)'
and "Medical Director Mrs. Clagg' in the complaint.
(Id. at PagelD 15-16). If these individuals are
parties that plaintiff intends to name as defendants to this
action plaintiff is further ORDERED to submit service copies
of the complaint, summons form, and United States Marshal
forms for these individuals. Plaintiff is advised that
failure to comply with this Order may result in the dismissal
of this action for want of prosecution.
service may be issued upon any remaining John Doe and Jane
Doe defendants, plaintiff must file a motion to issue service
setting forth the identities of the unidentified defendants.
Plaintiff is therefore ORDERED to file a motion to issue
service, including United States Marshal and summons forms,
if and when plaintiff discovers the identity of the unnamed
defendants through discovery. Plaintiff is advised that no
service will be issued on the unnamed defendants unless
plaintiff complies with this Order.
IS THEREFORE ...