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Drain v. Ohio Deparment of Rehabilitation and Correction

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

June 12, 2017

JOEL DRAIN, Plaintiff,
v.
OHIO DEPARMENT OF REHABILITATION AND CORRECTION, et al., Defendants.

          Barrett, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         Plaintiff, 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).

         In 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).

         Congress 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)).

         "A 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         In the 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).

         At this 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).

         Title 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.

         Accordingly, 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.

         Although 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.

         Plaintiff 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.

         Before 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.

         IT IS THEREFORE ...


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