United States District Court, S.D. Ohio, Western Division
KENNETH S. HARTZELL, Plaintiff,
MIAMI COUNTY INCARCERATION FACILITY, Defendant.
District Judge Walter H. Rice
DECISION AND ENTRY: (1) DENYING WITHOUT PREJUDICE PRO
SE LAINTIFF'S MOTION FOR AN ORDER DIRECTING DEFENDANTS TO
PROVIDE INFORMATION; (2) GRANTING PRO SE PLAINTIFF LEAVE TO
FILE A SECOND AMENDED COMPLAINT ON OR BEFORE JULY 7, 2017;
AND (3) DENYING PRO SE PLAINTIFF'S REQUEST FOR THE
APPOINTMENT OF COUNSEL
Michael J. Newman United States Magistrate Judge
pro se civil case is before the Court for a sua
sponte review of the complaint filed by Plaintiff
Kenneth S. Hartzell (“Hartzell”) pursuant to 28
U.S.C. § 1915(e)(2). Doc. 1. In accordance with 28
U.S.C. §1915(e)(2), this Court must perform an initial
review of the instant action. McGore v.
Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997).
Upon review, the Court must dismiss any case it determines is
“frivolous or malicious, ” fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
pro se pleadings are “to be liberally
construed” and are “held to less stringent
standards than formal pleadings drafted by lawyers, ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), pro se plaintiffs must still satisfy
basic pleading requirements. Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989). Specifically, the complaint
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. qbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Ogle v. Columbia Gas
Transmission, LLC, 513 F.App'x 520, 522 (6th Cir.
2013). “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.” Id. (citing
Twombly, 550 U.S. at 556); see also Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying
the Iqbal and Twombly standards to a §
case, Hartzell filed a form complaint on February 23, 2017,
naming the following Defendants: the Miami County, Ohio Jail
(the “Jail”); Jail kitchen staff members named
Tom___, Larry___, and Bruce ___; Jail medical staff members
named Dr. Cole, Katie___, and Sue ____; and Trinity Food
Services. Id. at PageID 2. A review of documents
Hartzell has filed separately since the filing of his
original complaint shows that he intends to assert claims
against these Defendants under 42 U.S.C. § 1983
concerning the conditions of his confinement at the Jail --
including, inter alia, claims concerning his medical
care, nutrition, and living conditions. Doc. 3.
Hartzell's original complaint, however, sets forth no
factual allegations in this regard and, instead, contains
only requests that the Court order Defendants to provide him
with the full names and addresses of the individual
Defendants (and the County Commissioners) so that he can
appropriately name them in his complaint and effectuate
service of process. See doc. 1-1 at PageID 7
(seeking the Court's help in getting Defendants'
names and addresses so he could “get started on a civil
suit” regarding “medical” issues).
as Hartzell seeks an order directing Defendants to provide
names and contact information, the Court lacks the power to
do so at this time because Defendants have not been served.
Cf. Friedman v. Estate of Presser, 929 F.2d 1151,
1156 (6th Cir. 1991) (stating that, absent service of
process, a district court is “powerless to issue orders
affecting defendants”). As a result, such motion is
DENIED WITHOUT PREJUDICE to refile. Insofar as Hartzell, in
his original complaint, seeks to assert claims regarding his
medical care, nutrition, and living conditions at the Jail,
his claims are subject to dismissal for failure to set forth
specific factual allegations stating plausible claims upon
which relief may be granted. See Fed. R. Civ. P.
noted above, on March 16, 2016, Hartzell did file a number of
documents consisting of approximately eighty (80) pages of
correspondence, handwritten notes, medical records, Jail
inmate request forms, and other documents appearing to allege
a lack of medical care, subpar nutrition and living
conditions at the Jail. See doc. 3. The Court
liberally construes Hartzell's filing in this regard to
be an attempt to amend his original complaint, which he is
entitled to do as a matter of course at this time.
See Fed. R. Civ. P. 15(a).
Hartzell's first amended complaint (doc. 3) is subject to
being stricken because it fails to comply with the
requirements of Fed.R.Civ.P. 10. Specifically, Hartzell's
amended complaint does not contain an appropriate caption and
he fails to “state [his] claims . . . in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances.” See Fed. R. Civ. P.
10(a) and (b). In addition, Hartzell, in his amended
complaint, does not set forth “a short and plain
statement of the claim showing that the pleader is
entitled to relief.” See Fed. R. Civ. P. 8
(emphasis added); see also Gurman v. Metro Hous. and
Redevelopment Auth., 842 F.Supp.2d 1151, 1152-53 (D.
Minn. 2011) (holding that Rule 8 prohibits a pleading party
from “cough[ing] up an unsightly hairball of factual
and legal allegations, stepp[ing] to the side, and invit[ing]
the defendants and the Court to pick through the mess and
determine if plaintiffs may have pleaded a viable claim or
Plaintiff's pro se status, and in lieu of
recommending dismissal of this case at this time, the
undersigned GRANTS Hartzell leave to file a second amended
complaint on or before July 7, 2017. In so doing, Hartzell
should remain cognizant of the pleading requirements noted
above -- such as setting forth a short plain statement of the
claims in numbered paragraphs, and supporting each claim with
specific factual allegations.
Court also notes that, in Hartzell's correspondence, he
appears to request the appointment of counsel. While courts
may appoint counsel in civil cases, see 28 U.S.C.
§ 1915(e)(1), the Court has no funding for such counsel
and cannot compel counsel to serve without compensation.
Mallard v. U.S. Dist. Court, 490 U.S. 296, 308-09
(1989); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th
Cir. 1993). Therefore, Hartzell's request for the
appointment of counsel is DENIED WITHOUT PREJUDICE. The Court
will reconsider Plaintiff's motion if and when this case
proceeds to trial. In the meantime, the Court encourages
Hartzell to contact the Greater Dayton Volunteer Lawyers
Project (“VLP”) by visiting gdvlp.org or calling
understanding that Hartzell is proceeding pro se in
this case, the Court, in the interests of justice, NOTIFIES
him of the following:
1. Parties are not permitted to have ex-parte
communications with the Court. This means that you cannot
communicate with the Court about the merits of your case,
orally or in writing, without the other party's
2. You must tell the Court and the other party's
attorney, in writing, of changes to your address and/or
3. Because pro se litigants do not have access to
the Court's electronic filing system, they are required
to mail a copy of anything they file with the Court to the
other party's attorney and enclose a signed Certificate
of Service. This requirement can be avoided if: (1) the
pro se litigant personally brings the filing to the
Clerk of Court's office for filing; (2) the attorney(s)
for the other party agree to receive service solely through
the Court's CM/ECF filing system; and (3) the Certificate
of Service in the pro se litigant's filing