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Hargrove v. Holley

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

October 31, 2017

DANIEL P. HARGROVE, Plaintiff,
v.
CO HOLLEY, et al., Defendants.

          Black, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff, an inmate at the Lebanon Correctional Institution (LeCI) in Lebanon, Ohio, has filed a pro se civil rights complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983, against defendants "CO Holley, " "LT Flowers, " the "Warden, " "Ms. Meyers, " "LT Hubbert, " "Timothy Heyd, M.D., " and "State of OH/C.C.A." (Doc. 3, at PageID 12). Plaintiff has also filed two supplemental pleadings. (Docs. 7 & 8). The Court construes the first supplemental pleading (Doc. 7) as an amended complaint, [1] clarifying plaintiffs claims and adding "Mr. Kasich" as a defendant.[2] The Court construes plaintiffs second supplemental pleading (Doc. 8) as a motion to amend the complaint a second time to add new defendants and claims and a motion for preliminary injunction. 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 amended complaint (Doc. 7) to determine whether the amended 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. § I915A(b). Also before the Court are plaintiffs motions to amend the complaint a second time and for preliminary injunction. (See Doc. 8).

         I. Screening of Amended Complaint (Doc. 7)

         A. Legal Standard

         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. §§ I915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be 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)(i). 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).

         B. Allegations in Amended Complaint (Doc. 7)

         In his amended complaint, plaintiff alleges that on July 1, 2017, at 11:50 a.m., while he was asleep in his cell in R-block, his cellmate "attack[ed] him and bit[] his right ear off or half of it and pulled his right eye out of socket." (Doc. 7, at PageID 25). At the time of the alleged attack, plaintiff claims, "only one officer [Holley] was working in R-block." (Id.). Plaintiff further claims that "the cells had no emergency call system." (Id.). According to plaintiff, he told Holley before the alleged attack "about the differences the plaintiff and his cell-mate had." (Id.). Plaintiff asserts that Holley "failed to stop the attack, he was just standing there watching." (Id.). Plaintiff also claims that Hubbert, "the supervisor that[']s over the hole, R-block, " should have moved plaintiff out of the cell the day before the attack "after [Hubbert] was told about [the] cell-mate[']s constant ejackulation [sic] in the cell while the plaintiff was in the cell with him." (Id., at PageID 27).

         Plaintiff claims that Holley's actions violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. (Id., at PageID 25). Plaintiff also claims that Holley "lied under oath" in a Conduct Report by stating that plaintiff admitted that he and his cellmate were fighting when the attack occurred. (Id.). Plaintiff claims that Hubbert's failure to move plaintiff out of his cell the day before the alleged attack was negligent and "showed a great deal of incompetence." (Id., at PageID 27).

         Plaintiff claims that the Warden was negligent in not having emergency call buttons in the cells in R-block (id., at PageID 25) and that Kasich was "negligent grossly for failing to abide by it's [sic] contract in keeping everyone safe" (id.,, at PageID 25). Plaintiff also claims, without elaboration, that the Warden was negligent "in not dealing with the infestation of the roaches, mice, and the water pollution and the sprinkler systems throughout the institution and mainly in R-block." (Id., at PageID 27). According to plaintiff, Kasich "is grossly negligent too by not fixing or dealing with infestations and water treatment." (Id., at PageID 28). Plaintiff further claims that the Warden retaliated against him by "denial of the petitioner's state pay and . .. blocking the plaintiffs legal mail." (Id., at PageID 27).

         Plaintiff next alleges that on August 8, 2017, Lauren A. Chalupa of Legal Services, who is not named as a defendant in this action, "reversed the plaintiffs extended restricted housing case, SMP LECI-17-006028, " but Flowers "has refused to transfer the plaintiff to another level 3 which is required by contract." (Doc. 7, at PageID 26). Plaintiff also alleges that he has been in the "hole" sixty-eight days in violation of the Eighth Amendment. (Id.).

         Further, plaintiff alleges that Flowers "has deliberately acted in a way to segregate and prevent the plaintiff from exercising rights guaranteed to all and receiving all legal materials that[']s needed for legal purposes." (Id.). Plaintiff also claims that Flowers "deliberately blocked" the grievance procedure in R-block. (Id.). Plaintiff alleges that Meyers "blocked" him from "obtaining a formal complaint and from appealing in accordance with the Prison Litigation Reform Act of 1995." (Id.). Plaintiff asserts that Meyers "is the sole reason the grievance procedure is being blocked." (Id., at PageID 27).

         Plaintiff alleges that Heyd, "an M.D. at Ohio State University Medical Center, "[3] was "grossly negligent by not giving [plaintiff) proper pain medications after surgery" on his eye and ear. (Doc. 7, at PageID 27-28). According to plaintiff, Heyd "didn't give the plaintiff any" pain medication. (Id., at PageID 28). Plaintiff further claims that "[t]he institution's medical doctor, " who is not named as a defendant in the lawsuit, "was notified but didn't give [plaintiff] any [pain medication] either, " (Id.).

         Plaintiff does not expressly allege any wrongdoing on the part of defendants State of Ohio or CCA. (See Doc. 7, at PageID 28). However, "plaintiff contends [that] all proceeds will come from the treasuries of the state of OH or CCA. if it's determined by this Court that the defendant[s] are or were working under the color of state law, " (Id.).

         As relief, plaintiff seeks monetary damages against the defendants. (See Doc. 7, at PageID 28).

         C. Analysis

         Liberally construed, plaintiffs amended complaint states an Eighth Amendment claim for failure to protect against defendants Holley and Hubbert and for deliberate indifference to his serious medical needs against defendant Heyd. At this stage in the proceedings, without the benefit of briefing by the parties to this action, the undersigned concludes that these claims are deserving of further development and may proceed at this juncture. See 28 U.S.C §§ 1915(e)(2)(B) & 1915A(b). However, plaintiffs remaining claims should be dismissed for failure to state a claim upon which relief may be granted.

         First, plaintiffs claims against the State of Ohio must be dismissed. Any form of relief sought against a State in federal court is barred under the Eleventh Amendment unless the State has expressly waived its sovereign immunity. See Seminole Tribe of Fla. v. Fla.,517 U.S. 44, 58 (1996); Pennhurst State Sch. & Hosp. v. Halderman,465 U.S. 89, 98-101 (1984); Hamilton's Bogarts, Inc. v. Mich.,501 F.3d 644, 654 n.8 (6th Cir. 2007). Ohio has neither statutorily nor constitutionally waived its sovereign immunity in federal court. Mixon v. State of Ohio,193 F.3d 389, 397 (6th Cir. 1999) (citing Johns v. Supreme Court of Ohio,753 F.2d 524, 527 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes,6 ...


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