United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE.
an inmate at the Lebanon Correctional Institution, brings
this action against defendants Thomas Schweitzer, Major
Spurlock, Lt. Husbard, Lt. Couch, Lt. Shankin, and Sgt. Mrs.
Hilis. (See Doc. 1, Complaint at PageID 10). By
separate Order, plaintiff has been granted leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
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).
on the allegations of the complaint, it appears that
plaintiff seeks to bring this action in connection with a
December 23, 2016 incident between plaintiff and another
inmate. Plaintiff claims that he was hospitalized following
the incident for serious injuries, and appears to seek
payment for his hospital bills and money damages.
entirety, the allegations of the complaint are as follows:
Mr. Thomas Schweitzer was fully aware that Marcus Arnold
729-464 had put me in the hospital 12-23-16. I was involved
in a argument with Sgt Hilis about checking in her block. She
told me why did I threatning her by saying on the kite I
would get the blood game members to start a war. Now I asks
her where is the kite and why didn't I get a conduct
report she then stated if I don't check in her block she
will get me crash on by boys who in the blood game members. I
was serious injury I had to learn how to walk again I then
was charged with hospital bills for another inmate crashing
on me. They charged 1, 405.00. I'm asking for the Courts
to stop these charges and make Lebanon Correctional pay for
my hospital bills. Please contact me as soon as possible.
Thank you I ask to suite for also 2.5 million.
(Doc. 1-1, Complaint at Page ID 11).
complaint should be dismissed because he has failed to state
a viable claim under § 1983, which requires a showing of
a deprivation of “a right secured by the United States
Constitution or a federal statute.” See Spadafore
v. Gardner, 330 F.3d 849, 852 (6th Cir. 2003).
initial matter, plaintiff includes no factual allegations
against defendants Lt. Couch, Lt. Husbard, Lt. Shankin, or
Major Spurlock. The complaint should therefore be dismissed
as to these defendants.
complaint only contains allegations against defendants Thomas
Schweitzer and Sgt. Hilis. Plaintiff's only allegation
against defendant Thomas Schweitzer is that he was aware that
plaintiff was hospitalized after his altercation with inmate
Arnold. Plaintiff does not allege that Schweitzer was aware
that Arnold posed a substantial risk of harm to plaintiff
prior to the attack or any other facts to suggest Schweitzer
failed to protect him from harm. With respect to Hilis,
plaintiff claims that he was in an argument with her and that
Hilis threatened that she would “get [plaintiff] crash
on by boys who [are] in the blood game.” (Doc. 1-1,
Complaint at PageID 11). Plaintiff does not allege that Hilis
or Schweitzer had any personal involvement in his injuries.
The complaint otherwise provides no factual content or
context from which the Court may reasonably infer that these
defendants violated plaintiff's rights.
extent that plaintiff seeks to hold Hilis liable for
threatening him, it is well-settled that “[v]erbal
harassment or idle threats by a state actor do not create a
constitutional violation and are insufficient to support a
section 1983 claim for relief.” Wingo v. Tennessee
Dep't of Corr., 499 F. App'x 453, 455 (6th Cir.
2012) (per curiam) (citing Ivey v. Wilson, 832 F.2d
950, 955 (6th Cir. 1987)); see also Chilcott v. Erie
Cnty. Domestic Relations, 283 F. App'x 8, 11 (3rd
Cir. 2008) (and Sixth, Fifth and Tenth Circuit cases cited
therein). Cf. Johnson v. Unknown Dellatifa, 357 F.3d
539, 545-46 (6th Cir. 2004). As noted above, plaintiff has
not alleged that Hilis took any other action against him or
pled sufficient factual content for the Court to reasonably
infer that Hilis acted on her threat. Plaintiff does not
indicate, for example, when his argument with Hilis occurred,
whether it predated the December 23, 2016 incident, or allege
any factual content to suggest that the attack was related to
to the extent that plaintiff contends that his being charged
for his medical expenses resulted in a due process violation,
he has also failed to state an actionable claim under §
1983. In order to assert a due process claim, plaintiff must
first plead, and ultimately prove, the inadequacy of state
remedies for redressing the wrong. See Vicory v.
Walton,721 F.2d 1062, 1066 (6th Cir.1983). See also
Hudson v. Palmer,468 U.S. 517 (1984); Parratt
v. Taylor, 451 U.S. 527 (1981), overruled in part on
other grounds, Daniel v. Williams,474 U.S. 517 (1984).
“If satisfactory state procedures are provided in a
procedural due process case, then no constitutional
deprivation has occurred despite the injury, ”
Jefferson v. Jefferson County Pub. Sch. Sys., 360
F.3d 583, 587-88 (6th Cir. 2004). Accordingly, in order to
state a procedural due process claim under section 1983
“the plaintiff must attack the state's corrective
procedure as well as the substantive wrong.” Meyers
v. City of Cincinnati,934 F.2d 726, 731 (6th Cir.1991)