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Foster v. State

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

November 2, 2017

CHRISTOPHER FOSTER, Plaintiff,
v.
STATE OF OHIO, et al., Defendants.

          Black, J.

          OPINION AND ORDER

          Stephanie K. Bowman, United States Magistrate Judge

         Plaintiff is a prolific filer of multi-page, single spaced, handwritten motions.[1] Nine such motions are currently pending in this prisoner civil rights case. This Order addresses all non-dispositive matters, with dispositive motions addressed by a separate Report and Recommendation (“R&R”) filed this same day.

         I. Background

         Plaintiff, a prisoner currently incarcerated at the Southern Correctional Facility (SOCF) and a frequent litigant in both the state and federal courts of Ohio, [2] filed this §1983 action alleging violations of his civil rights while he was incarcerated at the Toledo Correctional Institution (ToCI), as well as after his transfer to SOCF.

         Plaintiff's complaint alleges that while at ToCI, he suffered poor treatment, including but not limited to the improper disposal of his legal work and other property. In September 2014, he was transferred to SOCF, where Plaintiff alleges that he was subjected to racist and derogatory remarks, and was physically assaulted by a number of officers, including Defendants Rankin, Southworth, Neff, Parish, and John Doe, and possibly Workman. Plaintiff alleges that Defendant “Dr. Ahmed Fiscal” denied him medical care after the assault, and continues to deny him care for a skin disease. The original complaint contains additional allegations regarding Plaintiff's conditions of confinement, as well as an attack on Plaintiff's conviction and sentence.

         Based upon Plaintiff's extensive litigation history, the undersigned filed an R&R recommending that Plaintiff's motion to proceed in forma pauperis be denied. The Prison Litigation Reform Act (“PLRA”) includes a “three-strikes provision, ” whereby “[p]risoners whose suits or appeals are dismissed three or more times as frivolous, malicious, or failing to state a claim on which relief may be granted are barred from proceeding IFP ‘unless the prisoner is under imminent danger of serious physical injury.'” Bruce v. Samuels, 136 S.Ct. 627, 630 (2016) (citing 28 U.S.C. § 1915(g)). Plaintiff had previously filed three or more cases that had been dismissed at the screening stage, and the initial R&R found he had failed to demonstrate “imminent danger” under 28 U.S.C. § 1915(g).[3] However, the presiding district judge rejected that R&R on December 5, 2016, determining that Plaintiff had “adequately alleged imminent harm in a manner sufficient to allow the Court to grant him in forma pauperis status, ” (Doc. 9 at 3, PageID 37).

         Thereafter, the undersigned conducted a full screening of the merits of Plaintiff's claims in his initial complaint and a construed amendment (Doc. 10), under 28 U.S.C. § 1915(e). The Court determined that certain claims against certain Defendants in their official capacity could proceed, but that Plaintiff could not recover monetary damages because the State of Ohio enjoys Eleventh Amendment immunity. The Court reasoned:

At this stage in the proceedings, without the benefit of briefing by the parties to this action, the undersigned concludes that plaintiff may proceed with his Eighth Amendment excessive force claims against defendants Rardin, Southworth, Neff, Parish, John Doe, and Workman based on his allegations that these defendants attacked him upon his arrival to SOCF. Plaintiff may also proceed with an excessive force claim against Sgt. Bear based on the January 17, 2017 attack as alleged in the supplement to the complaint. The undersigned further finds that plaintiff's claim that he has been denied medical care against Dr. Ahmed Fiscal may proceed. Finally, plaintiff may proceed with his conditions of confinement claims at SOCF, including his claims regarding wheelchair accessibility, against defendants Warden Erdos, Dyer, and Bear.

(Doc. 12 at 6).

         Simultaneously, the Court dismissed many claims and defendants. For example, the Court dismissed all claims against ToCI, SOCF and the Ohio Department of Rehabilitation and Correction, since only “a person” acting under color of state law is subject to suit or liability under 42 U.S.C. § 1983. Additionally, the Court dismissed Plaintiff's conspiracy claims as insufficient to state a claim upon which relief may be granted. The Court dismissed Plaintiff's claims relating to the failure to investigate and/or respond to his grievances as insufficient to state a claim under § 1983. The Court held that Plaintiff also failed to state a claim upon which relief may be granted with respect to the alleged destruction of his personal property, whether that claim was brought as a due process claim or, with respect to the alleged destruction of his legal materials, as a First Amendment right of access to the courts. The Court held that Plaintiff could not challenge the validity of his criminal conviction or continued incarceration in this civil rights case. The Court also dismissed any claims seeking to hold defendants liable for threats and verbal harassment, since such allegations are not sufficient to state a viable claim under the Eighth Amendment. Finally, the Court dismissed a long list of “conclusory” allegations against an even longer list of would-be individual defendants: Steve Carter, Major Warren, Roger Wilson, O'Connor, Oppy, Hammerick, Lt. Phillips, Coons, Danhoff, John Doe, Nurse Koons, Mike DeWine, Christopher Bagi, D.W.O. Bowerman, Lt. Copley, and David Bobby. See id., 2017 WL 1394393, at *6 (S.D. Ohio 2017). In sum, only the following claims were permitted to proceed:

(1) Eighth Amendment excessive force claims against defendants Rardin, Southworth, Neff, Parish, John Doe, and Workman based on plaintiff's allegation that these officers attacked him upon his arrival to SOCF; (2) excessive force claim against Sgt. Bear based on the January 17, 2017 attack; (3) deliberate indifference claim against Dr. Ahmed Fiscal; and (4) conditions of confinement claims at SOCF, including plaintiff's claims regarding wheelchair accessibility, against defendants Warden Erdos, Dyer, and Bear. Having found that the remaining allegations in the complaint fail to state a claim upon which relief may be granted, the remainder of the complaint should be dismissed.

(Doc. 12 at 12, PageID62; adopted at Doc. 25).

         Initially, service was perfected on Defendants Rardin, Parish, Bear, Erdos and Dyer, but was not perfected on Defendants Southworth, Neff, Workman, or Dr. “Ahmed Fiscal” - whose correct name defense counsel has clarified is “Dr. Faisal Ahmed.” On June 12, 2017, the undersigned recommended that Defendant Southworth (who died in 2014) be dismissed. The same R&R recommended denial of several motions filed by Plaintiff seeking default judgments against various Defendants based upon their alleged failures to answer or otherwise respond to Plaintiff's complaint. (Doc. 43). That R&R was adopted over Plaintiff's Objections on August 16, 2017. (Doc. 56).

         Summons was later issued to the three remaining Defendants: Neff, Workman, and Dr. Ahmed. (Docs. 43, 44, 45). Defendants Neff and Workman filed an Answer, (Doc. 51), but counsel indicated he was filing as an “Interested Party” on behalf of the State of Ohio in place of Dr. Ahmed. (Id.) The undersigned subsequently granted Defendant Ahmed leave to file his Answer Instanter, and for other Defendants to file an Amended Answer. (Docs. 62, 63, 65, 66, 67).

         II. Pending ...


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