United States District Court, S.D. Ohio, Western Division
DANIEL P. HARGROVE, Plaintiff,
CO HOLLEY, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
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,  clarifying plaintiffs claims
and adding "Mr. Kasich" as a
defendant. 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
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).
Screening of Amended Complaint (Doc. 7)
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).
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)).
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).
Allegations in Amended Complaint (Doc. 7)
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).
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).
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).
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
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
alleges that Heyd, "an M.D. at Ohio State University
Medical Center, " 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.).
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.).
relief, plaintiff seeks monetary damages against the
defendants. (See Doc. 7, at PageID 28).
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.
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 ...