United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
a prisoner at the Lebanon Correctional Institution, filed a
pro se civil rights complaint in this Court against
defendants Z. Cherryholmes, Gary Mohr, Tom Schwietzer, and
Ms. Rutherford. 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).
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
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)(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)).
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).
complaint, plaintiff alleges that on or about August 1, 2016,
defendant Correctional Officer Z. Cherryholmes began to write
false conduct reports against him as a means to punish him.
(Doc. 1-1, Complaint at PageID 21-22). Plaintiff claims that
he sought assistance from other staff members, who told him
that “C/O. Cherryholmes does not like you and that
staff will talk to him.” (Id. at PageID 22).
about January 14, 2017, plaintiff claims he began to have
trouble with his cellmate, inmate Hope, who plaintiff claims
was bullying him. According to plaintiff, Hope attempted to
throw all his belongings out of the cell. Plaintiff claims
that he reported the issue to defendant Unit Manager
Rutherford and, although she was aware of the bullying,
refused to move or otherwise assist plaintiff.
January 25, 2017, plaintiff claims that Cherryholmes ordered
him out of his cell for a cell search. During this time,
plaintiff alleges that Cherryholmes read an informal
complaint that plaintiff wrote requesting that he be moved
from his cell due to his being bullied. Plaintiff further
alleges that Cherryholmes informed inmate Hope about the
informal complaint. As a result, plaintiff claims that Hope
subsequently returned to their cell, stated that Cherryholmes
told him that plaintiff “wrote a[n] Informal Complaint
on [him], ” and punched plaintiff “in a violent
rage.” (Id. at PageID 23). Plaintiff claims
that he exited the cell, yelling for help. However, according
to plaintiff, Cherryholmes ordered him to return to his cell
despite the attack and then sprayed him with pepper spray.
Plaintiff alleges that he was denied medical care and taken
directly to segregation with the mace still in his eyes and
on his skin. As a result of the incident, plaintiff claims he
has suffered permanent eye damage, a hole in his left ear,
and mental and emotional damages. (Id. at PageID
unsuccessfully sought relief through the prison grievance
system. Plaintiff claims defendant Warden Schweitzer refused
to resolve the matter and “appears to condone such
illegal acts of his staff such as beating on the inmates he
supervises.” (Id. at PageID 25). Plaintiff
generally alleges that the prison staff refused to
investigate his complaints or satisfactorily respond to his
seeks declaratory, injunctive, and monetary relief.
(Id. at PageID 19).
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 failure to
protect claims against defendants Cherryholmes and
Rutherford. Plaintiff may also proceed with his First
Amendment and excessive force claims against Cherryholmes.
However, plaintiff's remaining claims should be
dismissed. See 28 U.S.C. §§ 1915(e)(2)(B)
allegations that defendant Cherryholmes wrote false conduct
reports against him are also subject to dismissal for failure
to state a claim upon which relief may be granted. Erroneous
or even fabricated allegations of misconduct by an inmate,
standing alone, do not constitute a deprivation of a
constitutional right. See, e.g., Reeves v. Mohr, No.
4:11cv2062, 2012 WL 275166, at *2 (N.D. Ohio Jan. 31, 2012)
(and cases cited therein) (holding that the prisoner failed
to state a claim upon which relief may be granted to the
extent that he claimed he had “a constitutional right
to be free from false accusations”). “A
constitutional violation may occur, if as a result of an
accusation, the Plaintiff was deprived of a liberty interest
without due process.” Reeves, supra, 2012 WL
275166, at *2 (citing Sandin v. Conner, 515 U.S.
472, 485 (1995)). However, plaintiff's allegations are
insufficient to trigger constitutional concerns because he
has not alleged any facts even remotely suggesting that he
was deprived of a protected liberty interest.
complaint should be dismissed against defendants Warden
Thomas Schweitzer and Gary Mohr. Plaintiff's sole
allegation against defendant Mohr is that as Director of the
Ohio Department of Corrections, “he is legally
responsible for the overall operation of the Department and
each institution under its jurisdiction, including Lebanon
Correctional Institution where plaintiff is confined.”
(Doc. 1-1, Complaint at PageID 21). Plaintiff similarly seeks
to hold Warden Schweitzer liable for his responsibility for
operations at Lebanon Correctional Institution. However, to
the extent plaintiff seeks to hold these defendants liable
because of their supervisory positions, it is well-settled
that the doctrine of respondeat superior does not
apply in § 1983 lawsuits to impute liability onto
supervisory personnel. See Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009); Monell v. Dep't of Social
Servs.,436 U.S. 658 (1978); Hill v. Marshall,962 F.2d 1209, 1213 (6th Cir. 1992). With respect to
Schweitzer, plaintiff also alleges that he appeared to
condone the behavior of his subordinates in responding to
plaintiff's kite and generally alleges that prison
officials failed to conduct an adequate investigation.
Nevertheless, prison officials whose only roles
“involve their denial of administrative grievances and
their failure to remedy the alleged [unconstitutional]
behavior'” cannot be liable under § 1983.